Commentary on Professor Montserrat Guibernau\u27s Nations Without States: Political Communities in the Global Ag

Nelson, Jason

Tice, Beatrice

English

University of Michigan School of Law

Michigan Journal of International Law Volume 25 Issue 4 2004 A Commentary to Montserrat Guibernau Nations Without States: Political Communities in the Global Age Beatrice Tice University of Michigan Law School Jason Nelson University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/mjil  Part of the Indian and Aboriginal Law Commons, International Law Commons, and the Rule of Law Commons Recommended Citation Beatrice Tice & Jason Nelson, A Commentary to Montserrat Guibernau Nations Without States: Political Communities in the Global Age, 25 MICH. J. INT'L L. 1293 (2004). Available at: https://repository.law.umich.edu/mjil/vol25/iss4/26  This Symposium is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. COMMENTA COMMENTARY TO MONTSERRATGUIBERNAU NATIONS WITHOUT STATES:POLITICAL COMMUNITIES INTHE GLOBAL AGEINTRODUCTIONIn her notable paper, Montserrat Guibernau correctly states that theconcept of what comprises a nation is highly complex and problematic,susceptible to "multifarious definitions" about which there is much dis-agreement among scholars and policy makers.' Yet, in crafting her owndefinition of a nation without a State, Guibernau does little to clarify thismurky state of affairs.Guibernau's definition of a nation without a State consists of six ty-pological elements. First, she states that the "the members of a nationlacking a State of their own regard the State containing them as alien." 2This element implies not only a foreign relationship between the com-munities, but also one of hostility and conflict. Next, the definitionrequires that the people of the stateless nation "share a sense of nationalidentity generally based upon a common culture [and] history.' 3 Thesetwo factors assume that culture and history are shared homogeneouslyacross the entire community. Fourth, the definition requires that the peo-ple share "attachment to a particular territory."4 Again, this elementassumes homogeneity, as well as cultural significance of the land inquestion. Finally, Guibernau proffers that the stateless community musthave "the explicit wish to rule themselves," which she defines as inde-pendence involving sovereign powers of "foreign and economic policy,defense and constitutional matters."5 Implicit in this element is, ofcourse, the assumption that the people of the nation without a State uni-formly desire to form a separate State, independent of their alien host.We argue that Guibernau's definition is a static classification, basedon overly broad assumptions, which fails to take into account the inher-ent evolving nature of a nation without a State. Not only is her definitionimprecise, but when considered critically, it actually excludes at least1. Monserrat Guibernau, Nations Without States: Political Communities in the GlobalAge, 25 MICH. J. INT'L L. 1251 (2004).2. Id. at 1254.3. Id.4. Id.5. Id. at 1254-55.1293Michigan Journal of International Lawone of the examples she presents. In addition, her definition excludes asettled example of a nation without a State, which she fails to consider inher analysis.THE CASE OF SCOTLANDGuibernau discusses Scotland as an example of a nation without aState that has achieved some measure of both cultural recognition andpolitical autonomy.6 However, according to at least four of the six di-mensions of her definition, Scotland does not appear to qualify as astateless nation. Scots do not consider themselves alienated from the restof the United Kingdom; it has been said that "being Scottish and beingBritish is the norm in Scotland."7 Indeed, the union of Scotland and Eng-land in the early eighteenth century-and the concurrent loss ofScotland's independent statehood-was made possible in part because ofthe lack of strong cultural distinctions between the English and the low-land Scots.8 On the other hand, Scotland itself is, and always has been,extremely diverse. The traditional clear-cut division of the country intoHighlands and Lowlands is based on key differences among Scots inmatters of ancestry, tradition, language, religion, and social and politicalstructure. For example, Highlanders of the mountainous regions ofnorthern Scotland, descended from the indigenous Picts, traditionallyspeak Gaelic, follow the Catholic religion, and adhered to a clan systemof self-rule.9 The Lowlanders of southern Scotland and the border re-gions, descended from mixed Anglo-Saxon and Teutonic heritage,traditionally speak English, follow the Presbyterian religion, and adheredto a feudal system of governance." Although such differences are his-torical in origin and have blurred over time, Scotland remains verydiverse in its attitudes and beliefs. Such differences have tended to dilutethe notion of a common Scottish national identity and have served as arallying cry for the significant number of Scots who oppose Scottishself-governance." Thus, Scotland fails to satisfy the alienation, culturalhomogeneity, historical homogeneity, and uniform desire for independ-ence prongs of Guibernau's definition of a stateless nation. Yet there canbe little doubt of the ideological existence of Scotland as a nation, withor without a State.6. Id. at 1259.7. DAVID MCCRONE, UNDERSTANDING SCOTLAND 192 (2d ed. 2001).8. See BENEDICT ANDERSON, IMAGINED COMMUNITIES: REFLECTIONS ON THE ORI-GINS AND SPREAD OF NATIONALISM (rev. ed. 1996).9. See THOMAS MARTIN DEVINE, THE SCOTTISH NATION, 1700-2000 (1999).10. See id.11. See MCCRONE, supra note 7, at 192-93, 149-174.1294 [Vol. 25:1293Comment to GuibemauTHE CASE OF U.S. NATIVE AMERICANSGuibernau's definition not only excludes Scotland as a nation with-out a State, but she ignores what is arguably the seminal case in theWest-Native Americans. Though she does mention the plight of in-digenous peoples when discussing Quebec, she chooses not to analyzethe issue." Perhaps this avoidance was strategic, as Indians do not fitneatly within her definition of a nation without a State. In fact, Indiansfail to fully satisfy at least four of her six definitional elements.First, it would be hard to argue that Native Americans regard theUnited States as an alien host State. The very term "Native American"symbolizes the dual nature of Native people, including their distinct mul-tidimensional national identities. Indians participate in all facets of U.S.society, even choosing to enlist and fight in the country's armed forces.For instance, a Native American Lori Piestewa was the first female sol-dier killed in the Iraq War.3 And during World War II, the legendaryNative "Code Talkers" invented a decisive military code that the Japa-nese never broke. 14 Hence, there is scant evidence to support the notionthat Indians consider the United States as alien.Second, one might concede that Native Americans share a commonculture and history, at least if one takes a panoptic historical view (thereis patently extensive cultural and historical heterogeneity among Tribes).Even so, there is little evidence to show that Indians remain attached toparticular territories. Guibernau's underlying intent in naming this ele-ment seems grounded in Radin's personhood theory of property, whichis the notion that the significance of property is a function of its positionin a social context. 5 For Native Americans, such an attachment to landlikely existed during the pre-colonization period, but following the pe-riod of Indian removal (1814-1858), 16 this attachment ceased to exist.Yet it seems dubious to assert that Tribes' failure to maintain attachmentto a particular territory lessens their status as a nation without a State.Finally, Guibernau argues that members of a nation without a Statehave a desire for self-rule. This factor is partially descriptive of Native12. Guibemau, supra note 1, at 1265.13. First American Female and Native Soldier Killed in Iraq War is Remembered,INDIAN COUNTRY TODAY, Apr. 11, 2003, available at http://www.indiancountry.com/content.cfm?id=10500725108&CFID-2463188&CFTOKEN-93733443 (last visited Nov. 7,2004).14. MARGARET T. BIXLER, WINDS OF FREEDOM: THE STORY OF THE NAVAJO CODETALKERS OF WORLD WAR 11 (1992).15. Richard T. Ford, Book Review, 48 STAN L. REv. 217, 223 (1995) (reviewingMargaret JANE RADIN, FACTS AND VALUES IN PRAGMATISM AND PERSONHOOD (1993)).16. See ROBERT V. REMINI, ANDREW JACKSON AND His INDIAN WARS (2002).Summer 20041 1295Michigan Journal of International LawAmericans, whose Tribes often claim sovereign status.'7 How far theirsovereign power extends is a question beyond the scope of this analysis,but it is reasonable to allege that not all Native communities promulgateidentical claims regarding the extent of their sovereignty. The key pointis that to fit within the confines of Guibernau's definition, "tribal gov-ernments must be able and willing to accept the responsibility ofgoverning."' 8 In short, there are in excess of 500 federally-recognizedU.S. Indian Tribes,'9 and they are neither all willing to assume an equiva-lent amount of governing responsibility, nor are they all capable of thesame level of governmental functioning. Still, this intra-tribal self-determinative heterogeneity does not imply that some Tribes are moredeserving of the status of a nation without a State. The Universal Decla-ration of Human Rights correctly holds that self-determination dependson the will of the people, 2° and in the case of Indians, there can be a vari-ety of factors that lead Tribes to pursue different sovereignty goals.Thus, Native Americans fail to satisfy the alienation, distinct na-tional identity, attachment to a particular territory, and uniform desire forindependence prongs of Guibernau's nation without a State definition.Moreover, it is questionable whether Indians meet the cultural and his-torical heterogeneity prongs; this determination requires furtherelucidation from Guibernau regarding her level of analysis. Nonetheless,one can hardly doubt that domestic Tribes like the Cherokee, Seminole,Choctaws, Creeks, and Chickasaws qualify as nations without a State.CONCLUSIONGuibernau makes a laudable attempt to define a nation without aState. In fact, her paper culminates with an analysis of the major dilem-mas facing the nation without a State: addressing internal diversity;avoiding violence as a means of creating change; and controlling thedrive to create expensive bureaucracy. Nonetheless, these recommenda-tions fail to aid the majority of communities that one would consider tobe stateless nations because these communities do not fall within the17. Robert A. Fairbanks, Native American Sovereignty and Treaty Rights: Are theyHistorical Illusions?, 20 AM. INDIAN L. REV. 141 (1995-1996); see also David E. Wilkins,Indigenous Nations as Reserved Sovereigns, INDIAN COUNTRY TODAY, June 13, 2003, at Per-spectives, available at http://www.indiancountry.com/content.cfm?id=1055516194 (lastvisited Nov. 7, 2004).18. Fairbanks, supra note 17, at 144.19. Bureau of Indian Affairs Home Page, U.S. Department of the Interior, athttp://www.doi.gov/bureau-indian-affairs.html (last visited Oct. 26, 2004).20. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. GAOR, art.21(3), at 71, U.N. Doc. A/810 (1948), available at http://www.un.org/Overview/rights.html.1296 [Vol. 25:1293Comment to Guibernaunarrow confines of her definition. For instance, it is unclear whetherScotland or Native America would consider these dilemmas as majorissues; it seems unlikely.In fact, the static definition of a nation without a State is the primaryfailure in Guibernau's account. We posit that it is not feasible to definethe nation without a State-which is a fluid, evolving, and amorphousideological concept-by employing strict typological elements. In thecase of Scotland and Native America, one can readily discern thechanges that have occurred in these communities throughout history;even if there was a point in time where both examples fit within Guiber-nau's definitional parameters, the defined construct's validity was short-lived. Employing exacting criteria within a definitional construct is bestreserved for substantive jurisprudence, such as the Montevideo Conven-tion's requirements for statehood under international law: a permanentpopulation; a defined territory; a government; and capacity to enter intorelations with other States.21In the final analysis, what defines a nation, Stateless or otherwise?Surely it must be left to the people who comprise the community inquestion to determine the answer. If the people belonging to a commu-nity understand and believe it to be a nation, and act within it as a fittingsocial and cultural structure for their lives, then these individuals obvi-ously deem that sufficient homogeneity and shared identity exists, inwhatever form or proportion, to satisfy their consciousness of unity andkinship. Such an idea of community assuredly qualifies as a nation. Andif that nation is not constitutionally autonomous, but is situated withinthe territory and/or autonomy of an existing State, then undoubtedly itcontinues to qualify as a nation without a State.BEATRICE TICEAdjunct InstructorUniversity of Michigan Law SchoolJASON NELSONJ.D. University of Michigan Law School21. Montevideo Convention on the Rights and Duties of States, Dec. 26, 1933, art. 1,165 L.N.T.S. 19.Summer 2004] 1297

A Commentary to Montserrat Guibernau Nations Without States: Political Communities in the Global Age

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A Commentary to Montserrat Guibernau Nations Without States: Political Communities in the Global Age

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