A Burgundian People and the Power and Perils of Sovereignty for Small States
We always were English and we'll always be English, and
it's precisely because we are English that we're sticking up for our right to be Burgundians!
Ealing Studios' 1949 classic, Passport to Pimlico is a hilarious take on the perils and benefits of independence for small states. Pimlico is of course a very small state – a manor house and its former grounds in London, which had been ceded to the Duke of Burgundy in mid-15th century. This charter is discovered in a buried cellar that is thrown open by an accidental explosion of a bomb left-over from World War II.
The residents of Pimlico, suffering under post-war rationing declare themselves Burgundians, free from British laws, included British rationing. To add to their joys, buried treasure is discovered. The newly declared Burgundian territory is soon flocked by enthusiastic Londoners seeking to sell and shop – though as it happens, none are carrying their passports and consequently, unable to re-enter ‘Britain’.
However the new state soon discovers also the hazards of sovereignty, as following its stoppage of a subway train at the ‘international border’ of Burgundy, it is blockaded by the British government and water and electricity supplies are cut off. The residents also begin to run out of food and water, and are invited to immigrate into ‘Britain’, but remain determined to fight for their freedom…
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The issues for international lawyers? Kosovo’s Declaration of Independence has provoked fresh concerns about the legal limits to the principle of ‘self-determination’ along with the legitimacy of the instant secession and its precedential value for regions of the world. The viability of the new state is additional consideration.
Arguments on secession or ‘external self-determination’ usually devolve into a debate between the relative standing of the principles of territorial integrity and the right of self-determination. Till date, there exists no clear legal rule to determine when the latter principle may take priority over the former. The only easy cases are those in which it is possible to argue that the two principles do not really come into conflict; claims of independence by colonial countries and peoples for instance do not pose heavy legal challenges to territorial integrity.
Recognition of a state newly formed by such an act of secession is ultimately a political act, and may be a constitutive element of state-hood, though in general it is supposed to follow upon a display of conformity with the criteria of statehood described in the Montevideo Convention, viz. permanent population; defined territory; government; and the capacity to enter into relations with other States.
Recent commentary on Kosovo focuses on the peoplehood of the Kosovar Albanians and their right to a distinct territory. The arguments in favour of an independent Kosovo are its existence as an autonomous province of Serbia within the former Socialist Republic of Yugoslavia, its efforts through the 1990s to regain this autonomy within the successor state of Serbia, and its governance through international administration since 1999. The argument against, which Chris Borgen points out, is that modern state practice normally does not extend ‘peoplehood’, and therefore the ‘privilege of secession’, to a fragment of a larger ethnic group. It could be argued that Kosovar Albanians are a fragment of the Albanian ethnic group, and thus not a ‘nation’ in the ethnographic sense.
Effective government is another concern. While the size of the state is not usually determinative of its viability - and Kosovo with a territory of about 10,000 square kilometers and population of 2 million is a far cry from Palau (459 sq. km, 20000 ppl), Liechtenstein (160 sq. km, 35000 ppl) or Monaco (2 sq. km, 32000 ppl) – according to Thomas Grant “[s]mallness, especially when exacerbated by poverty, may impede [its] independence for political and economic reasons”.[1]
Jori Duursma’s study indicates that micro-states like the three mentioned above often assign away performance of public functions like judicial dispute resolution and performance of public services like transportation and postal services to other states.[2] Depending on their location, even states with significantly larger territories than Kosovo, such as Bhutan and Lesotho are subject to physical and policy influences from neighbouring states, India and South Africa, respectively.
A profusion of small and weak states may give rise to systemic concerns. For one, each small weak state which is the member of the United Nations has a seat in the General Assembly at par with other states. If it votes according to the direction of another state, that state has acquired two de-facto votes. By counting Tonga, Solomon Islands, Palau, Marshall Islands, Micronesia, among its numbers the US was able to boast of a numerical Coalition of 49 states that supported the Iraq war. It is also possible that lack of resources or lack of capacity to utilize those resources, leading to economic deprivation could result in political instability and human rights violations, and potentially endanger international peace and security.
On the other hand, as Juan Enriquez argues that having ‘too many flags’ is not necessarily counterproductive from the point of view of particular states.[3] With a surface area of 704 sq. kilometers, Singapore for instance is an economically strong state. Slovenia, which seceded from former Yugoslavia has a strongly growing economy with a high human development index. Monaco, a tax haven, has the distinction of having the highest population density in the world.
Naturally, Pimlico makes the absurd case for peoplehood as well as for the benefits and perils associated with independence of small states. There is no analogy implied to Kosovo. But do watch…
[1] Thomas D. Grant, Between Diversity and Disorder: A Review of Jori C. Duursma, Fragmentation and International Relations of Micro-States: Self Determination and Statehood, 12 Am. U. J. Int'l L. & Pol'y 629 (1997).
[2] Jori C. Duursma, Fragmentation and International Relations of Micro-States: Self Determination and Statehood (1996).
[3] Juan Enriquez, Too Many Flags?, Foreign Policy, No. 116 (Autumn, 1999) pp. 30-49.
