We are dealing, that is to say, with two sides of the same coin, which are essentially inseparable. It can be said that the praxis of a nation is simultaneously ‘internal’ and ‘external’. The external actions of a nation are reflected internally, and its internal actions are reflected externally. A nation-state with an authoritarian structure presents an external posture different from that of a democratic nation-state. An aggressive and expansionist nation-state is unlikely to be guided by a constitution that places a high value on democracy and freedom. A nation that does not respect the liberties of its own nationals will undoubtedly not respect those of other States and their nationals, and vice-versa. Therefore, the argument for the separation of the external and the internal does not stand. To give a specific example, we may remember that, as has been pointed out by some authors, including Charles A. Kupchan, nationalism was the principal cause of the 1914-18 and 1939-45 world wars, showing that nationalism can lead to a policy of war and aggression. On the other hand, in Rawls' view, for international relations to be guided by justice, which he equates with fairness, requires that the peoples that participate in such relations also have a just internal constitution themselves. The condition for a law of peoples is that each of the peoples integrated in such a law must have a liberal regime, or at least what may be termed a decent one. Passing on from Rawls, Tesón may also be referred to as one of the firmest defenders of the thesis that international law and domestic justice are essentially intertwined.
Bearing in mind that the maintenance of peace, respect for treaties, and mutual non-aggression among nations are the dominant concerns of international law, it will be shown that nationalism may come into conflict with all of these. There are no self-contained realities here. We should not forget, however, that what Kupchan says is that nationalism can give rise to belligerency and aggression, not that, a fortiori, it must do so. This raises the question, in what circumstances will this occur? It is this question that has led me to a deeper and more rigorous study of nationalism in its different forms and examples.
The law allows for the foundation of nations, as a manifestation of human freedom, giving legitimacy, in these circumstances, to loyalty and fidelity to the nation. This fidelity and loyalty is nationalism, a nationalism of personalist origins because it is based on law (for me a synonym of natural law) directed by justice, which ordains respect for the freedom of individuals and groups. However, it may happen that the group-nation takes upon itself divine status, in effect using human freedom to reject justice. This represents an alienation of this freedom, giving rise to something that will metaphorically devour it. The nation-states are considered absolute, acknowledging no restrictions. Or, if they are not considered absolute, they are believed to rank immediately after the absolute. Such a nationalism, termed suprapersonalist, comes immediately into conflict with international law, on the one hand, to the degree to which the latter implies the mutual recognition of nation-states, and, on the other, because international law demands that each nation respect the freedom of the individual subjects who form its basis. Such a nationalism, inasmuch as it justifies aggressions and tyrannies, constitutes a threat to international law and must be condemned by such law, because the latter is an ought to be based on justice, which seeks to impose itself by coercion, even though this coercion often does not succeed and does not have a similar positivity, such as, for example, criminal law.
International law, being a law between nation-states, based on a conception ofvalue that is a unity of multiplicities, must involve the justification of personalist nationalism, as representing the right to existence of the various national groups, multiple elements of the unity which ensures their mutual respect. In this sense, nationalisms of this type are children of international law, and no theory of the latter would be complete that failed to consider and approve such nationalisms. Equally, this theory must direct its reflections towards the supra-personalist nationalisms, because these represent, in the above analogy, a son who has risen up against his father. The relationship between unity and multiplicity, which forms the foundation of international law, is here distorted, and this question must be confronted, otherwise one of the salient aspects of this law would be insufficiently considered. Supra-personalist nationalism makes each nation-state an entity that absorbs the plurality of its human subjects. At the same time, it makes each nation-state an element that is not submissive to any unity, thus turning it into a factor of international anarchy. It is the responsibility of international law to remedy this; by not doing so it contradicts its very essence. It is incumbent upon international law to unite the nation-states in mutual respect for their autonomy and, at the same time, to require from each of them respect for their human subjects and for the smaller groups that those subjects, exercising their rights, freely choose to form. Respect for human rights is an imperative of international law, always consistent with order, balance, and harmony (that is, with justice).
Less than a century ago, exacerbated nationalisms cast the world into a catastrophe of unprecedented proportions. International law was set aside and violated without scruples. This example immediately raises the question: to which international law am I referring? One that is merely positive? In that case, a nation-state which claims intrinsic superiority may embark on limitless expansion, and justify it in the name of international law. The theory of international law that I seek to develop, in which the idea of value is central, is the one that can be presented against aggressive nationalism that either calls its pretensions ‘international law’, or simply disregards that law. A well-founded condemnation of supra-personalist nationalism cannot be formulated from the simple fact of being, with effectiveness and validity, that is, from positivity. Instead, this condemnation should rather look on supra-personalist nationalism from a jusnaturalist perspective that indicates what ought to be and does not restrict itself to the mere positive fact. What enables us to distinguish between the legitimate nationalism of oppressed peoples and the nationalisms without restraint whose objective is to enslave other nations, if not international law based upon logically irrefutable principles, not upon mere articles and paragraphs of positive law, which may represent only what is effective, which was based upon brute force or demented support (or both) as in the case of Nazism?
Does international law have nothing to do with nationalism? Does international law, then, have nothing to do with the conduct of nations? Does ‘theory’ necessarily mean that we observe without taking action? Was it not through despising and disregarding the correct theories that international affairs reached historic depths in the last century? Nor are these questions only for the last century. Contemporary examples, in Austria, and most recently in Norway (e.g. Mr Breivik's mass slaughter), show that we still face renewed and present threats. The sudden growth of Islamophobia warrants the concern of the entire international community. As previously mentioned, we can find throughout history an individualist or personalist type of nationalism that is totally compatible with the concept of international law espoused in the course of this essay. In the case of Switzerland, for example, the unifying factor was neither race nor language, but rather the free will of its people. The initial confederation gathered men of German, French and Italian origins, speaking their own languages and respecting each other. It became a country of four official languages – German, French, Italian, and Romansch – although in practice only the first three languages are common. In addition to language, other factors could have caused division. The different religions that separate the several cantons have not managed to question the consistency of the initial confederation. Swiss, as well as North-American nationalism, represent paradigms of an individualist type of nationalism. Nations, regarded within this perspective, arose from the two great Western revolutions, the American and the French. For example, the French crowds gathered with cries of vive la nation for the Fête de la Fédération. As for the Americans, they also consider the nation to be synonymous with the people. We can see it, for example, in the constitutions of Vermont, Massachusetts and New Hampshire. And it is not difficult to recognize a similar position in Amendments IX, X and XV of the constitution of the United States. Here we have a clear recognition of nations as associations of individuals who decide their own destinies.
Kazakhstan may also be regarded as a nation that has embraced individualist or personalist nationalism, as defined in this study. The people of Kazakhstan, known as the Kazakhstani, comprise several different ethnic groups, among them Kazakhs (60%), Russians (30%), Ukrainians (3%) and Uzbeks (2%). The Kazakh language is spoken by the vast majority of people (64%), while Russian is also in wide usage. In addition, English is becoming increasingly significant within the country’s multicultural context. With regard to religion, Muslims account for more than half the country’s population, with Russian Orthodox Christians coming in a close second at 40%. It is also important to note the existence of a considerable number of synagogues. Such diversity represents a society which displays tolerance at all levels, including religious. It may be relevant to emphasize that Kazakhstan is a predominantly Muslim society which has demonstrated a notable degree of tolerance towards other faiths. Similar religious tolerance was found in the 8th century during the occupation of the Iberian Peninsula by the Arabs. During this period, the so called ahl al-kitab or ‘people of the Book’ (the Bible or the Torah), that is, the Christians and Jews, were not forced to convert to Islam but rather allowed to maintain their own faith.
John Rawls, an American legal philosopher who, as previously mentioned, was a strong supporter of liberal democracy, showed how people who differ over religion can coexist politically. Only a conception of nation based on the free choice of men deserves full respect. It should not be rooted only in the right of association. It is unquestionable that all rights are inseparable and they are all based on the freedom of man. Both freedom of association and freedom of thought (including of expression and religion) are needed because the latter without the former would be ab initio limited in its options. On the other hand, freedom of association implies political freedom because without suffrage and free elections the former could not exist as those associations – the political parties - which play such important roles in modern societies would be banned. And the reciprocal would also apply. Without providing detailed explanation, I would like to assert that it is obvious to our understanding that suffrage and free elections without freedom of association (groups and political parties), of thought and expression is a farce as was pointed out so well by Kelsen, and confirmed by history with the plebiscite and pseudo-choice of representatives in Nazi Germany and Fascist Italy. There is a place for a true nationalism, which can be called individualist or ‘civic’ (to use the terminology of Neil MacCormick). In this type of nationalism, there is a place for diverse races, cultures, languages and religions that should be treated without discrimination precisely because they should be regarded as equally human without any prevailing or defining character as to how a nation should be.


© Mode de citation : Paulo de BRITO, « The importance of constructing atheory of international law in the face of nationalism », MULTIPOL - Réseau d'analyse et d'information sur l'actualité internationale, 10 février 2012