Human settlement and public order face a grave challenge as international law is applied to rights, claims and obligation in conflict with the nation state.
The principle of integrity of boundaries and non-interference in the domestic affairs of states – a number of whose boundaries were redrawn to reconcile with ethnic populations – is considered to have been established by the Treaty of Westphalia. By that time most groups in Europe had ceased to be considered tribal and began to be understood as ethnic groups. The takeaway from that transition and from the results of the Treaty of Westphalia is that nations and their boundaries in Europe could generally be considered as ethnic groupings within unique boundaries.
As a result, the people living within those boundaries came to be considered as nationals of that state rather than members of any tribe or ethnic group. This can be considered the formal origin of the term nation state. It implies that its inhabitants share and are conscious of a common identity (rather than mere experience) and normally a common functional language. This implies a single national identity – normally an inheritance from a dominate tribe, group or culture. The term national is important because its national-ity defines the state’s legal jurisdiction over a person and affords that person the protection of the state. However, it is not the same as ‘citizenship’ which defines the rights and obligations that any particular national may have. Although we know this distinction particularly from Roman times, there are even today United States, British and other country nationals who are not citizens of those countries. This a historical and present precedent for individual and general rights discrimination, and also widely practiced. In brief it follows that shared identity and any other chosen characteristic can be used to accord any physically present person, inhabitant or would-be inhabitant any status as per the laws and administration of any individual state which prevail over any possible so-called international law or so-called universal values. Laws and administration of any individual state may be based on any principle, value, preference, ideology or even caprice – and as such by definition involve discrimination and inequality.
The transition from singular tribal affiliation to national affiliation allows for a unity of different ethnic groups, but it necessarily placed some restrictions on diverging interests of those ethnic groups. Nationals of the nation state were thus more than mere residents. As a result, and with some irony, the concept framework of the nation state assumes both a single national identity, and also meant that different ethnic groups within a nation state could be nationals through their self-identification in sharing core common interests, values, experience, etc. In this way there could be multi-ethnic nation states, although the viability and sustainability of this structure appears weak.
In settler societies such as the United States, Australia and Canada the hinterland population identity can be broadly considered as reconciled as a single nationality, although there are some exceptions and it has been achieved over a long time and with great effort. In urban areas the situation is different where in addition to a large population of ‘nationals’, there are three other outcomes for inhabitants: those who choose to embrace the common national identity from within their own ethnic community, those who form a new identity separate from the prevailing national identity, and those who find it possible and desirable to remain separate from the common national identity within their intact ethnic community.
For modern nation states the main challenges to their political stability have been: legacy boundaries that fail to address the interests of ethnic groups, and the rural-urban divide where large populations in urban areas do not share the same national identity as those in the hinterland. Not every country faces a significant problem of legacy ethnic boundaries, but nearly all face that of rural-urban divide. This last challenge has become greater as the world has urbanized with larger populations. It should be noted that cities are not themselves nation states, and that even city states are not the same as small nation states. Moreover, within the ‘national’ population that inhabits cities, national identity may be under attack for many reasons and in the modern world ‘national’ elites may not share a national identity.
The foregoing shows that discrimination by the state in recognizing national and citizens, in
providing the associated opportunity for habitation, refuge, personal safety (protection), social and economic opportunities, political and legal rights; and in imposing obligations on the individual is at the heart of governance and for which the willful social contract of all those physically present or inhabitants is not required. This is primarily because nationality and citizenship do not necessarily derive from location of habitation. The idea that they do so derive has become conventional wisdom in recent decades with the rise of so-called international law and movement of refugees, but it is not factual. Why not?
‘International law’ is the basis for much political discussion and for the political management of immigration, citizenship, nationality, citizenship, refugee status, and asylum. The origins of ‘international law’ pertaining to these subjects trace back principally to the time of World War II, the establishment of the United Nations and the de-colonization period when there were large involuntary and unplanned movements of people from one country to another. In order to address this crisis a system was put into place which ultimately determined that all the world’s people were entitled to a place where they were not in fear of – at least – physical harm, but which has now moved further to practically imply an entitlement to freedom from economic and social insecurity. Of course, this is an extremely open-ended and dangerous concept because it is, in principle, a step toward universal citizenship and toward the abolition of nationality. It means that any individual can make a claim on any jurisdiction for status, benefits and opportunities, and that he, his family or his place/community of origin has no primary responsibility for that. It also implies the universal freedom of movement that allows access to the individual’s unbounded claims.
Nevertheless, the practical basis of entitlements, rights and obligations is the fundamental reality of physical presence – not claims – although that is only the starting point. The United States has strayed far from its common law origins so that the basis for common law – tradition, practice and common sense – is now largely forgotten. Domicile is the key condition underlying most civil rights. It is different from residency or habitation in that it requires origin – or intention to permanently settle – in a place. Origin refers to birth and family, while intention to permanently settle is demonstrated by concrete meaningful actions. Domicile can be a partial, but not a complete basis for nationality, nationality does not necessarily guarantee the benefits of citizenship, and citizenship is not a right or a guaranteed package of benefits. Accordingly, ‘international law’ is fundamentally in conflict with accountable local self-government as manifested in the nation state. It is past time to reject ‘international law, universal citizenship, and global freedom of movement for unlimited claims anywhere as impractical and subversive, and to restore stability to human settlement.
By H. T. Scott Gibbons
Source: One World