Freedom and Independence

1. “Peoples are free and independent, and their freedom and independence are to be respected by other peoples“(LP: 37)⁵⁵

“Every State has a right to independence and hence to exercise freely, without dictation by any other State, all its legal powers, including the choice of its own form of government.”

Art. 1., Draft Declaration on the Rights and Duties of States (1949)

Philosophical Interpretation

This principle of Rawls’ LP tells us about the way Peoples order their internal, and consequently, their foreign affairs. It has two elements: freedom and independence. The former tells us that the substantial

54In limiting legal analysis only to the legal texts of the United Nations does not mean that some other existent international regimes would not serve the purpose as well. However, the United Nations, with its many agencies and its universal membership, is by far the most extensive international regime and in that sense the most adequate practical example for proving our point: that Rawls’ principles are nothing more than the practical rules similar to those of the United Nations, which does not deal with idealized but factual states, and that his theory still awaits true principles that would account for these.

55 In the Amnesty Lecture (1992) and the Article published in the Inquiry (1993) the first principles reads: “Peoples (as organized by their governments) are free and independent, and their freedom and independence is to be respected by other peoples”. Hence, Rawls stresses that by the “peoples” he means a specific form of government. This stress was not necessary in LP since the entirety of chapter 2 is devoted to the explication of Peoples.

characteristic of the ‘peoples’ is being a master of its own political faith. Peoples are free to decide on the form of their own government, i.e. their own social, political and economic life as they please. When defining Peoples, Rawls stresses self-determination as one of the key ideas. The citizens of liberal societies are to discuss all political issues democratically. They have equal rights and opportunities to express their opinions. Members of hierarchical societies are similarly to have their forums of representatives where consultation takes place. Hence it is the peoples in both types of societies who decide upon society’s conditions. Thus, society is free in the Kantian sense, i.e. the only laws it subjects itself to be those that its population chooses. They are neither subjects of any foreign force nor of any authoritative ruler. The population is itself a sovereign.

The condition of independence builds on the idea concept of self-sufficiency. In TJ, self-sufficiency has been greatly elaborated: society is a closed system in which people are born into and leave at death.

Society secures for its citizens a morally and economically respectable life. The idea is once more taken up in the theory of global justice when Rawls stresses the importance of political education. He argues that any society may become well-ordered and satisfied as long as it finds the right political structure that accommodates the cultural, sociological, psychological and historical needs of its peoples, and the natural resources a society has. Thus, according to Rawls any society may be self-sufficient and in that sense independent.

However, in the context of international relations the concepts of freedom and independence also have a wider meaning. It is important that a society, though self-sufficient and free in its internal affairs, be independent and free in the political sense from other societies and to be recognized by others as such.

Though self-sufficient, no society develops alone. Societies have fundamental interest in preserving the achievements of their internal freedom and independence that is their “common awareness of their trials during their history and their culture with its accomplishments” (LP: 34). Societies have an interest in recognition and respect from others, and are ready to show it to others; in doing so, they differ from states that traditionally care only for profit. This means that colonies or protectorates do not pass this condition and as such cannot be members of the Society of Peoples. The two conditions, internal and external independence, are interconnected since there can hardly be freedom in decision-making when the state is not independent, and vice versa.

This principle in Rawls version, as applied to the peoples, has a moral value. It points to the way societies perceive and are to be perceived by other societies. It contains the aspect of being reasonable, since the freedom and independence is to be respected even if it collides with the immediate benefit of the society. This principle is thus more of a restatement about the moral character of the Peoples. It is normative, a guideline for entities that are not the Peoples and do not have a moral

nature.⁵⁶

Legal Interpretation

Freedom and independence in international law is usually accounted for through the doctrine of sovereignty. This doctrine has been one of the key elements of international relations since the seventeenth century but its meaning was never clearly settled. It basically says that the state is free to make its own determinations on all political, cultural and social issues on its own territory. States, therefore, have a right and responsibility to frame their own domestic and foreign policies as they think it suitable (Tomuschat 1999: 164-170). The sovereign power of the state or its decision-making body changed over centuries. In the early stages of the formation of modern state, from around 1648 until the formation of the first republics in 1789, it was the ruler who had the last word on policies in the state and towards other states. In modern times, especially after World War II (WWII), the idea of sovereignty is connected to the idea of self-determination.

“Self-determination provides the best justification for recognizing sovereignty, and it reflects at the same time the democratic principle, which today is alone considered capable of legitimating the exercise of public power. Sovereignty operates as a legal device permitting a people to peruse its political goals within the community of nations, on the one hand, and reject any attempt at interference in their internal matters, on the other hand. Thus, a people is master in its own territory. It holds comprehensive powers to decide on anything that may require regulation” (Tomuschat 1999: 165-166)

Therefore, on one hand internal sovereignty was constrained by self-determination in the Kantian sense that peoples were bound only to the laws they give themselves, but on the other external sovereignty was bound by the respect for other Peoples’ territoriality as one of the key elements of sovereignty.

Sovereignty has become more relaxed since the globalization process is underway and territoriality is seen as less important. However, freedom and independence, development and mutual recognition are all done on the state level. Before the global state comes into being, borders will be important no matter how flexible these may be, overlapping would mean conflict and contradiction. Sovereignty, and consequently freedom and independence, need to work within the borders of the states and to respect them.

Many states that are economically dependent are also conditioned in their international and even internal affairs by this dependence and are therefore not free. International law should provide rules that

56 If we take it to be normative for the Peoples, then we have tautology: “the principle” is then saying is that free and independent societies (the Peoples) are to respect other free and independent societies as free and independent. The principle makes sense only then, if the respect for freedom and independence is asked from the societies which are still not, but are aspiring to be free and independent.

will minimize this, especially the rule stressing the necessity of freedom and independence.