Does a state have a right to exist?
And what obligations attach to any such right, if there is one?
It’s strange how I had never before considered this question, until people started saying that Israel has a right to exist. Or, rather, the question is always put: Do you agree that Israel has a right to exist? It is therefore a provocative question, which does not invite the response yes but rather the response of course. Of course is a response reserved to questions that the interlocutor regards as superfluous, and therefore conveys a qualitative judgment concerning the value or otherwise of the question itself. The response of course is tantamount to saying what a stupid question.
But it’s astonishing how non-stupid the question can become. Does Catalonia have a right to exist? Of course. Does Catalonia have a right to an independent existence? Does Scotland? Does Wales? Does Ukraine? Does the Greek region of Macedonia? Does the Turkish region of Kurdistan? Did the Confederate States of America? Did Poland, when Poland didn’t exist? Does Greenland? Does Russia? And, if so, what is Russia? Does an animal have a right to exist, or does it depend on the animal? Does the environment have a right to exist? What is a right to exist? And what is it a right to exist as?
The right of Israel to exist is a lead-in to an established historical narrative. Ostensibly, leaving aside for the moment its biblical claims, Israel has a right to exist based on the declaration in May 1948 of its existence and its membership, shortly thereafter, of the United Nations. By definition, you cannot be a member of the United Nations unless you exist as a nation. (Or unless you’re Palestine.) So, what is a nation?
In the United Kingdom, we have for long not known what a nation is. The UK has a national anthem, which is sung only by England, because at events featuring the nations of Wales and Scotland, like rugby matches, they play other songs for those nations. And, irony of ironies, British rugby is played within a championship that used to number four nations (it now includes Italy and France). The four nations comprised England, Scotland, Wales, and a strange nation that hasn’t actually existed since 1801: Ireland, as meaning the territory of the island of Ireland. So, if Ireland (qua island) is a nation able to field a rugby team, does Ireland (qua island) have a right to exist as a nation?
The more succinct question is whether any nation, whether as an independent nation state or as a protectorate, overseas department, colony, dependency or other legal fiction, has a right to exist, which is capable of being asserted erga omes? And, if such a right were to exist, before which instance or in what forum would that right be actionable?
The United Nations is the forum in which nation states are invited to settle their differences. It has now outgrown that function, because at least two major players with seats on its Security Council no longer seem willing to acquiesce in its systems of dispute settlement. The existence of the dispute-settlement regime hangs on the requirement that the permanent members of the Security Council will never, at any point, breach the Charter of the United Nations, because their position on the Security Council grants them immunity for any breaches they themselves commit. And if the Security Council, and by extension the International Court of Justice, cannot in the present day and age be relied upon to hear applications founded in a right to exist on the part of any nation, then that nation cannot, de facto and by definition, assert any right to exist beyond narrative bluster. It is that lack of an instance or forum before which an encroachment on a nation state’s right to exist can be asserted that renders any right thereby asserted of no object. That is to say, any such right is in desuetude to the extent that it even existed in the first place.
A nation such as is represented at the General Assembly of the United Nations is an entity marked out by certain prerogatives:
it has the sole prerogative of issuing laws within its territory, which it may enforce as it sees fit;
it has a prerogative to define its territory and to defend it against all-comers;
it exercises a sole right of taxation, including insofar as that right is devolved on sub-units;
it has the sole right to raise an army, and may compel its citizens to serve in its armed forces;
it has sole prerogative over the use of violence and coercion;
it has sole prerogative over the incarceration of those of its citizens it deems worthy thereof by dint of their conduct or actions;
it governs itself as it sees fit; it is not beholden to any fundamental principle of democracy, plutocracy, monarchy or other constitutional system;
and so on and so forth.
These are classic features of a nation, and they are predicated on one single authority: the authority to apply force. To coerce, if you will. And it applies that force with the common consent of its people, because the force that a nation’s authorities apply is by definition applied in the interests of that nation: its national interests. And the nation is the collectivity of people who, by constitutional theory, have abrogated their rights to govern themselves in favour of the structure that governs them and that, in case of necessity, itself applies force in the execution of that governance.
By dint of the fact that an entire population cannot be consulted on every last policy act by their government, much of the consent that validates the acts of a government is not actually established by any form of poll or questionnaire but is rather deemed in terms of legal theory. And, it is trite to say that any challenge to that legal theory will qualify as an act of treason (whereby the nation enshrines in law a provision that prohibits anyone governed by the law from challenging the nation’s prerogative of passing that law). This means that he who objects to the exercise of a nation’s prerogatives thereby challenges the right of the nation to exercise those prerogatives and ergo seeks to undermine the nation per se, that being the definition of an act of treason: to act such as to procure the downfall of the nation, or its leader. It can also take the form of raising opposition against the government other than through the expedient of duly organised elections, in the context of an armed uprising or revolution. The question of a state’s right to exist hereby takes on a third angle:
there is the state’s right to be in existence;
there is the question of the form in which the state has a right to exist (be it as a colony or as an independent nation); and now
there is the question of the system of government under which the state is entitled to exist. This last question was long taken to be one subject to the will of the citizens of the nation in question, but it is increasingly proving to be one in which powers outside that nation might have a hand.
A basic feature of rights, which borrows from Isaac Newton’s laws of motion, is that every right has an equal and opposite obligation. That introduces an interesting quandary for those who would argue that a state has a right to exist, if only based on the might, or force, it is able to exert in order to assert that right (let alone because the right is enshrined in some higher doctrine, such as the Charter of the United Nations).
The right to exist as enshrined in the Charter implies an obligation to abide by the terms of the Charter in relations with all other members of the United Nations (and, arguably, even those few territories that are not within the UN’s purview). The answer to the question of whether a state has a right to exist in those terms is, in part, dependent not on any decision issued by the United Nations, since any such decision can only too easily be influenced by partisan interests within the organisation, but rather on a clinical analysis by the party to whom the question is put of whether the state in question has, by failing to accord with the requirements of the Charter, jeopardised its right to exist (N.B. not its existence per se, but its right to exist).
Otherwise, it is dependent on a factual analysis of whether it is in truth in existence, by dint of the strength and power it has exerted in assertion of its existence, thereby rendering its existence de facto, since a de iure definition of the right of existence is likely to be without object. One might restate this in a more Cartesian fashion as sum ergo sum, ergo ius mihi esse est: I am, therefore I exist, therefore I have the right to exist. The right of a nation to exist is not a right that anyone can challenge before any court of law, since no court can enforce a redress of any infringement of that right, and therefore it is not a right that carries force of law, hence it is not a legal right. There is no such thing as a right that is not a legal right, and, because of that, the right of a nation to exist doesn’t exist.
All the foregoing may seem somewhat involved, and it is involved, because those who argue on both sides of this argument are confusing two paradigms. They confuse the rights of individuals, which themselves require international conventions in order to take any kind of concrete form, with the rights of nations, and they may as well confuse them with the rights of wild animals. In the end, no nations have any rights. Instead, they have armies. Just as wild animals have teeth.
Quite aside from the right to exist, however, is the right to cause another state or private individual not to exist. That, ultimately is the obligation that attaches to a right to exist, whether by convention or teeth: nations may conquer nations, and mankind has devised rules of war to govern how they are permitted to do that. This derives logically from the nation’s claim to a sole prerogative of wielding violence. Only the nation may exert violence, be it in punishment for a crime, or to enforce law and order, or to assert its defensive or offensive manoeuvres against another nation (or persons of other nations who would challenge the nation’s borders, prerogatives, rights, etc.). Just as persons may not eradicate other persons (murder), and persons may not eradicate nations (treason), so nations also may not eradicate other persons (murder/genocide), even if they do retain a prerogative (albeit putatively governed by the UN Charter) to eradicate other nations.
The foregoing does nothing more than reiterate international humanitarian law, the law of the United Nations, and the standard criminal law of every nation on earth. We hereby arrive at some conclusions:
all nations have a right to exist for as long as they are able to assert that right with force;
all nations have a right to exist in terms of the provisions of international law, provided they themselves obediently comply with the provisions of international law; failing that, they at least jeopardise their own right of existence, if only by encouraging third nations to attack them in response;
all nations have a de facto right to conquer other nations in violation of international law provided they have the wherewithal to force acquiescence in their victories through military power. Might ultimately is right.
Since nations have supreme law-making power within their constitutions, it makes little or no sense to speak of rights which they may assert vis-à-vis other persons or collectives, such as nation states. In such relations there is the theory of treaty agreement, but treaties and conventions between states are rarely better understood and adhered to than contracts between individuals or businesses. They are inevitably a travesty paying lip service to the legal fiction of the meeting of the minds.
As for Israel, its right to exist, which is therefore tantamount to its de facto existence, rests on the declaration of its constitution in 1948 and the fact that it has been able to expand or contract its territory through military offensives, treaties and expulsions of civilians without successful resistance to its operations such as to halt or reverse them. Its right is its might. But it has no right in law, since there is no right in law to confer upon it. If its, or any nation’s, territorial integrity is subject to challenge from outside, it will need to assert, not its right to exist, but its existence qualitate qua to all-comers, for ever more; because those who acquiesce in the de facto existence of Israel on the territory that Israel occupies, or some part thereof, do not necessarily thereby acquiesce in the existence of Israel in other parts, or on other territories.
Nobody is under any international duty not to challenge a party that breaches the United Nations Charter, or international humanitarian law, or the right of might when it comes down to it. Parties who do breach these norms open a tidal wave of rights on the part of anyone, anywhere to challenge the territorial integrity of any nation state, and its government, and its governmental systems, albeit not its people. That is, not unless they manifestly associate their destiny with that of the culpable nation.
As stated above, a nation comprises a group of people who join in one name, one national hymn, one flag, one motto, one ambition, as one people. But no nation is of one single voice only. It is a fluid question where the tipping point lies between a nation that joins in a single battle cry, and one that comprises groupings of communities whose relations are not compelled in support of the nation, but whose energies are directed of free will towards their fellow man, absent any sense of coercion other than the spirit of community itself: whereas nationhood is a matter of coercion, even if applied softly, community is a pure expression of free will.
However, it is, nonetheless, perfectly possible for those who associate of free will to hone a philosophy by which they compel their countrymen to join with them, in order to enforce the idea of nationhood, which is what we see in right-wing chat rooms and extreme-right party politics. There then comes a point, especially in the case of Israel, which has throughout its history nurtured a citizen army to prosecute its campaigns of expulsion and murder, at which the people makes itself, qua body politic, exempt from international and humanitarian law and renders itself subject to the law that they have thereby advocated for others: the law of the jungle.
So, do I agree that Israel has a right to exist? Sure, I agree it has a right to exist, just as I agree that a lion in the jungle has a right to exist. But if a lion comes after me, or the people I hold dear, then I will seek to kill the lion. The lion’s right to exist is coupled to its obligation not to attack us. The lion cannot then say, “Look, how these people whip up angst against me: that is prejudice, unwarranted prejudice. Tell them they must stop, because they are spreading hatred of lions.” How would I answer this? I would tell the lion, “I do not spread hatred of lions, but only of those lions that fail to live up to the obligations that attach to their asserted right to exist. Not all lions attack us or those we hold dear. Only you do. And so we encourage dislike of you. Not of your sort, even though your right to exist carries an obligation to support the right of all lions to exist, by not earning lions a reputation that is undeserved. Don’t attack us and those we hold dear, and we shan’t hate or encourage hatred of you or any lion.”
Of course, there would be little hope of getting a lion to understand this. Likewise certain nations. The lion’s right to exist is founded in its ability to tear me to pieces before I shoot it dead. That is the only form of reasoning that is possible with a lion in terms of its right to exist. And lions and nations are no different in that respect.