resumir el texto de forma profesional y enumerar lo que tiene que ver con el caso y nacionalismo catalan: ""
Paradoxes of National Self-Determinationdetermination.Second, the theory does not consider the range of politicaloptions short of independence that might satisfy a national group's needto advance its welfare while avoiding the risks and disruptions associatedwith the breakup of a state. Such measures as regional autonomy orconstitutional protection of communal rights would seem, in many cases,a more satisfactory way of handling the interests at stake than secession.The value of national self-government does not seem to justify a right ofself-determination unless these other, less extreme options are shown tobe inadequate.Finally, in focusing almost exclusively on the welfare ofencompassing groups, the communal theory does not clearlyacknowledge that the prospect of national self-determination calls intoplay at least two sets of competing interests: those held by the nationalgroup, and those held by the larger body of citizens making up theexisting state (which, of course, includes the members of the nationalgroup in another capacity). To establish a universal right of nationalself-determination, it is not enough to show that self-government isvaluable for national groups in some or even many cases. It is necessaryto show that, at a global level, this interest substantially outweighs theinterests of citizens in maintaining existing states intact.However, such a case is not easy to make on a universal basis.There is good reason to think that, in a world of serious periodicdisorder, stable boundaries often carry substantial benefits for citizens,as frameworks within which they may lead their lives in relative peaceand security. It is surely paradoxical that a theory that places such valueon communal welfare should pay so little attention to the needs ofexisting and emergent multinational communities (to say nothing of theinternational community as a whole) and, in so doing, ignore the closelinks that exist between the well-being of those larger communities andthe well-being of the groups and individuals that compose them. Inshort, the theory seems to attribute little significance to the relativeorder and stability represented by existing state structures.The point is not merely of theoretical interest. Given whathistory and contemporary events tell us about the potential for inter-communal conflict, any principle that permits ethnic, cultural, andreligious groups to attempt the restructuring of existing state boundariesby unilateral fiat would often lead to extensive turmoil and bloodshed, asvarious groups struggled with state governments and one another toachieve the most advantageous definition of their homelands.To summarize, then, it does not appear plausible to argue thatthe value of self-government for national groups is sufficiently greater1994]
OSGOODE HALL LAW JOURNALoverall than the value of current governmental arrangements for thecitizens of existing states as to justify a universal right of national self-determination. The best that can be said is that, in certain specificcircumstances, the interests of a national group in governing itselfsubstantially outweigh the interests of the larger collectivity in keepingthe state intact. In such cases, the national group may gain a right ofself-determination. It is not easy to enumerate the instances in whichsuch a  right may arise. But situations of serious injustice, as where agroup is being oppressed or exploited by the central government, wouldsurely constitute the central case.B. TerritoryUnder the communal theory, an encompassing group thatexercises its right of self-determination in favour of independence gainstitle to the territory that it occupies, so long as it forms a substantialmajority-of the resident population. This title is good in internationallaw and prevails over that held by the former state.What is the foundation of this new title? Margalit and Raz donot devote much attention to the point. They appear to think, however,that the title arises from the conjuncture of two factors: the value thatself-government holds for the group, and the group's factual occupationof the territory as the majority population.31 The underlying reasoningseems fairly straightforward. An encompassing group needs a territoryin order to realize the value that independent statehood potentiallyoffers. The fairest and most practical solution is to recognize that thegroup holds a title to the territory in which it forms the predominantpopulation.The communal theory thus offers a strikingly simple solution tothe vexed territorial question. However, as closer examination reveals,this simplicity is achieved at substantial cost. Issues of territorial titlehave traditionally been thought to be deeply rooted in history. In mostdisputes over territory, the claims of the parties are bolstered by detailedhistorical evidence that attempts to show an unbroken chain of titleextending as far back in time as is necessary to defeat rival claims. Forthis preoccupation with the past, the communal theory offers a simplesubstitute: head-counting. An encompassing group is entitled to theterritory in which it forms a substantial majority. As the authors remark,3 1We leave aside here the distinct case in which an encompassing group wishes to claim backa territory from which it was unjustly expelled, as briefly discussed in ibid. at 459.[VOL. 32 NO. 4
Paradoxes of National Self-Determination"numbers count in the end."'  2As a result, little significance is attached to existing territorialboundaries, whether these be international or domestic. The relevantterritorial unit for purposes of self-determination is decided largely bythe demographic configuration of the encompassing group33 It isnoteworthy that, in this respect, the theory is at odds with thedecolonization process carried out in Africa, India, and South-East Asiaafter World War II, a process that is generally thought to provide themain modem examples of self-determination. Decolonization wasusually implemented on the basis of existing colonial boundaries,boundaries that showed little respect for the niceties of ethnic, cultural,or religious homogeneity. Under the communal theory, for example, therelevant units for purposes of self-determination in East Africa wouldpresumably not have been the colonial territories of Tanganyika,Zanzibar, Kenya, and Uganda, but rather the numerous tribal and ethnicgroups that inhabited these territories and spilled untidily across theirboundaries into adjacent countries.Likewise, according to the communal theory, the existingProvince of Quebec would probably not constitute a self-determiningunit, since it does not correspond to the boundaries of any singleencompassing group. Rather, the appropriate unit would appear to bethe territories occupied by the francophone population of southernQuebec and eastern Ontario, with the possible addition of the Acadiansof northern New Brunswick (who, on the other hand, may qualify fortheir own right of self-determination). It is a significant and telling factthat this viewpoint does not correspond to the political programme ofany substantial group of francophones in Canada today.This situation is not entirely surprising. However artificial andinconvenient territorial boundaries may be, they are often the result oflong-standing historical compromises that are difficult to reverse withoutconsiderable human cost. Consider, for example, the southern sector ofthe boundary between the Provinces of Quebec and Ontario, whichdates back more than tvo hundred years. This line was the result of adecision taken in 1791 to split the Old Province of Quebec into twoparts, so as to allow Upper Canada to develop as a predominantlyEnglish-speaking and Protestant Province, while Lower Canadaremained largely French and Catholic. This decision had important321bia at 458.33 As noted earlier, an encompassing group is entitled to the territory in which it constitutes asubstantial majority. However, the authors also mention that in some situations "historical ties" willprevail, as limited by the principle of prescription: see ibid. at 458-59.1994]
OSGOODE HALL LAW JOURNALhistorical ramifications. In particular, it shielded the French communityin Quebec from the impact of the United Empire Loyalists who hadflooded across the border during the American Revolution. As such, itplayed a major role in the subsequent development of Quebec andindeed of Canada as a whole. Over the past two centuries, the areas oneither side of the border have been settled and developed on theunderstanding that the line was permanent and served to delimit theseparate spheres of two distinct legal, political, and social systems. Yet,according to the communal theory, these historical considerationsshould be set aside in favour of the simple demographics of culture andlanguage.This indifference to history manifests itself in another way. Thecommunal theory tacitly treats the territory of a state as a kind of terranullius, in which existing territorial title counts for nothing in the face ofthe claims of national groups. This approach, of course, ignores the factthat the existing state has a recognized international title to the territoryin question and, further, that its citizens may have strong collective andindividual interests in the maintenance of that title. The wealth andfuture prospects of a state and its population are intimately connectedwith its territory-its natural resources, geographical configuration,access to rivers and seas, strategic location, agricultural wealth, industrialpotential, and so on. The territory of a state is not a homogeneous spacethat can be divided and subdivided at will without regard to any factorsother than the number of people that happen to occupy it, as if it were alarge, uniformly drab dormitory. The natural and acquired assets of aterritory are often distributed quite unevenly, with some areas morefavoured than others. So long as a state remains intact, the variedadvantages offered by its regions are shared to some extent by the entirepopulation, through redistributive taxation, commercial andemployment opportunities, and so on. However, secession brings thissituation to an end. The seceding territory ceases to be the jointpatrimony of the populace as a whole and becomes the exclusivepreserve of its immediate residents. Moreover, the residual state findsitself with new boundaries not of its own making, ones that may havesignificant drawbacks.So, in many cases, the threatened secession of a  region gives riseto serious and justified concerns on the part of the existing state and itsinhabitants, concerns that are directly related to the territorial question.It is not a matter of indifference to the people of Canada that Quebechappens to sit astride the St. Lawrence River and Seaway, and that italso separates the eastern part of Canada from Ontario and the West.Likewise, the people of Quebec can hardly overlook the fact that the728[voL 32 NO. 4
Paradoxes of National Self-Determinationnorthern parts of the Province are rich in hydro-electric potential whenthey contemplate the prospect that the Aboriginal. peoples of NorthernQuebec might assert their own rights of self-determination.These reflections suggest a more general point. The communaltheory assumes in effect that the question of territorial title has littleautonomy in its own right, but is decided by the same considerations thatgive a national group the authority to determine its international status.In other words, if the group has a  valid right of self-determination, itautomatically has the potential to acquire a valid territorial title. Butthis seems to confuse and possibly reverse the order of priorities. Asignificant factor in determining whether a national group has a right ofself-determination should surely be the merits of its territorial claim ascompared to that of the existing state. At the least, it should berecognized that the two questions are autonomous, even if closelyintertwined, and that the answer to one does not necessarily determinethe answer to the other.To sum up, the connection between the right of self-determination and territorial title is far more complex than thecommunal theory concedes. A claim of national self-determinationpresents in effect a territorial claim that rivals that of the original state, aclaim that needs to be assessed on its own merits and not simply as afunction of other questions. Moreover, it would appear that theinterests of the existing state and its population in maintaining theintegrity of its territory are sufficiently strong to justify awardingpresumptive priority to its existing title, a title that could be defeatedonly by strong countervailing considerations.C. AllegianceThe communal theory attaches great significance to the bondsbetween individuals and national groups, bonds of a cultural, linguistic,religious, or historical character. In its view, the importance of thesecommunal bonds is such that the national group has the right to protectand reinforce them by opting for independence. This approach couldperhaps be criticized for its tendency to portray people primarily asgroup members and to downplay their status as autonomous individuals.However, that criticism will not be advanced here. Rather, thecommunal theory will be faulted, not for any supposed disregard ofindividual rights, but for being in a sense insufficiently communal.Far from encouraging the cultivation and growth of extensiveand multilayered communal bonds, the theory tends to promote a1994]
OSGOODE HALL LAW JOURNALtelescoping of communal horizons and a narrowing of sharedallegiances. In effect, the theory fails to take proper account of the widerange of overlapping communities that may properly have claims on ourloyalties, from the family, the kin group, the neighbourhood, the school,the church or temple, the workplace, and the club, on upwards to theethnic nation, the province, the state, the religious denomination, andthe universal community composed of humanity as a whole. Inconsidering the multiplicity of these allegiances and the varyingimportance they may have for individual self-identity and well-being, wemay begin to doubt whether the claims of any single "encompassinggroup" should be privileged to the extent suggested, and to wonder inany case how such a group might be identified.Some of these doubts are reinforced when we attempt to applythe theory in concrete factual contexts. Take the relatively commonsituation where national groups nest within other national groups likeRussian dolls. In Canada, for example, anglophones constitute asubstantial majority of the country's population as a whole,francophones are the strong majority in the Province of Quebec, andvarious groups of Aboriginal peoples predominate in certain parts of theProvince. Under the communal theory, all of these groups arguablyqualify as "encompassing groups" and so all alike hold rights of self-determination. However, if these rights were to be exercisedconcurrently, they might well lead to contradictory results. For example,a Canada-wide referendum might reject the option of Quebecindependence, while a Quebec-wide referendum supports it. Or aQuebec-wide referendum might reject a proposal for the independenceof Northern Quebec, while a referendum in Northern Quebec endorsesit. How should such conflicts be resolved?The logic of the communal theory seems to be that the smallerunit takes precedence over the larger. The potential value of self-government for a national group is such that it is entitled to opt forsecession notwithstanding the wishes of a larger national group thatenfolds it. Thus, while anglophone Canada may have a right of self-determination, it has no right to prevent francophone Quebec fromexercising its corresponding right, and Quebec in its turn has no right tonegate the rights held by various Aboriginal peoples in Quebec-and soon. Indeed, there seem to be few effective limits to the fragmentationpermitted by the theory. So long as a group possesses a pervasiveculture that is central to the self-identity and well-being of its members,that group is entitled to determine the political future of its territory.Thus, Mennonite communities in Ontario, Doukhobor settlements inthe Western Provinces, as well as anglophone communities in Quebec[VOL. 32 No. 4730
Paradoxes of National Self-Determinationand francophone communities throughout the rest of Canada (toidentify only the most obvious cases) would presumably all qualify for aright of self-determination.In apparent recognition of this difficulty, Margalit and Razattempt to put a brake on the theory's divisive tendencies. They affirmthat the right of self-determination cannot vest in small face-to-facegroups whose members are known personally to all other members. Fora group to qualify, it must be an anonymous entity in which mutualrecognition is secured by the possession of general characteristics, suchas distinctive manners or a  special vocabulary, rather than personalknowledge34 However, in the context of the authors' general approach,this limitation is not convincing. While small, face-to-face communitiesno doubt differ from larger, more anonymous groupings, there does notseem to be any cogent reason why personal familiarity among themembers should prevent a right of self-determination from arising, atleast according to the theory's own criteria. To the contrary, theimportance of group membership to individual self-identity and well-being may be significantly greater in some small face-to-face groups thanin larger ones, so that, in the theory's own terms, the case for self-government is correspondingly stronger. In short, there do not appearto be any grounds within the communal theory for resisting thesplintering that it permits. Such grounds can only be found by lookingbeyond the theory to a range of values and allegiances that it does notconsider.More generally, then, in its concern to further the welfare ofencompassing groups, the theory underestimates the need to safeguardand advance the welfare of mixed and multinational communities, to saynothing of the international community as a whole. In particular, thetheory does not permit a finer-grained analysis that takes account of themultiple allegiances, commitments, and responsibilities that peoplehave, the varying weights to be assigned to these bonds, and the need topreserve and foster the growth of governmental and internationalstructures that permit these multiple allegiances to coexist and flourish,each within its proper sphere.The political system best able to satisfy this 'need is one thatrecognizes multiple centres of authority and erects strong barriersagainst their invasion and suppression. In many cases, this wouldsuggest some form of federal system. However, the communal theory isunfriendly to such systems. Under its principles, federations would beinherently unstable, always open to fragmentation at the hands of a3 41bid. at 447.1994]
OSGOODE HALL LAW JOURNALsingle national component, and highly vulnerable to political blackmailin the form of secession threats. Not only would the theory promote thedissolution of multinational federations, it would discourage theirformation from the start, for the incentive to enter into federal unionswould greatly diminish, given their inherent instability.IV. CONCLUSIONIn summary, then, the communal theory suffers from three basicdeficiencies. First, it gives a rather one-dimensional account of thecomplex factors that enter into any assessment of the rival claims ofauthority advanced by states and secessionist national groups. Inparticular, the theory downplays the values of stability and orderrepresented by existing arrangements, and ignores the widespreaddisorder likely to result from awarding encompassing groups the right toalter those arrangements unilaterally. Second, the theory does not dealadequately with the question of territorial title or take proper account ofthe legitimate interests and expectations that territorial title stands for.Third, in its concern to further the welfare of national groups, the theoryunderestimates the need to safeguard and advance the welfare of mixedand multinational communities, and to encourage the emergence ofgovernmental structures that permit various communal allegiances tohold sway within their several spheres.Our inquiry also suggests a more general conclusion. Theconcept of a universal right of national self-determination, on the modelof universal human rights, fails to reflect adequately the complex issuesthat arise in concrete cases of proposed secession, and suppressesawareness of the wide range of competing values and interests at stake.In this area, "rights-talk" tends to produce simplified, somewhatschematic portrayals of what are in reality highly complicated humanproblems, with multiple historical, political, legal, and moral dimensions.For example, as noted earlier, the stability of existingconstitutional and territorial arrangements has a certain worth in itself,even if this clearly needs to be weighed against other considerations,such as the basic demands of justice. However, the importance ofstability is difficult to express convincingly in the language of rights. Tosay that people have a "right" to a certain measure of constitutionalstability in their lives seems false or exaggerated, or somehow does notstrike the right note. It seems more natural to say that people have acertain interest in the existence of stable arrangements, or that sucharrangements have a certain value. This interest must, of course, be732[VOL. 32 No. 4
Paradoxes of National Self-Determinationassessed alongside other factors. But it should clearly figureprominently in any discussion of a proposed secession. Remainingwithin the charmed circle of "rights-talk" tends to prevent this.As this example suggests, then, the concept of a universal "rightof national self-determination" seems inadequate to the task ofcapturing the full range of historical, political, legal, and moralconsiderations that arise whenever a national group asserts the right tosecede from an existing state. In a word, the right of national self-determination should not be viewed as a universal right, on the model ofbasic human rights; it is a right that arises only in specific historicalcircumstances, the precise configuration of which cannot readily bedetermined in advance.Looking back now at the words of William Dunning, quoted atthe beginning of this paper, we may regret our haste in dismissing themout of hand. Perhaps, after all, there is something to be said for the viewthat authority is prior to liberty.and equality, if by that we mean that amodicum of domestic and international order (and the authority neededto support it) is the necessary precondition of any worthwhile forms ofindividual and communal flourishing. However, more fundamental thanthe issue of authority is the question of what bonds unite us as humanbeings and members of the universal society, and how these bonds canbe reconciled and harmonized with our ties to the range of particularcommunities that nurture and sustain us, from the family and localneighbourhood to the church, the linguistic group, the ethnic nation, andthe state. Here, it seems fair to say, we still have much to learn.However, history provides at least one important lesson. The humanneed for community can never be fully satisfied by a single, all-encompassing group, no matter how rich or pervasive its culture.Indeed, such a group would stifle the deep-seated need for a broad andvaried range of communal bonds that overlap and intersect, jostlingamong themselves for our allegiance. In a word, community demandscommunities.""