Ensayo en columna con la resina S930

The American Declaration of Independence was drafted by Thomas Jefferson, and was adopted in Congress by the (then) thirteen States of America on the 4^th July, 1776.⁴¹ In the Declaration, Jefferson derives the right of the people of America to throw off the sovereignty of the King of England from his statement, said to be ‘one of the best-known sentences in the English language’,⁴² that:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.⁴³

As Lucas notes, the scope, and thus the true significance, of this statement is contested:

It has been studied and restudied by historians, critics, philosophers, and political theorists – usually in an effort to determine what Jefferson and the Congress intended by such phrases as “created equal” and “the pursuit of Happiness.” But there are no definitive answers – partly because Jefferson never explained what he meant, partly because the words of the Declaration did not mean the same thing to all members of Congress (or to all readers).⁴⁴

The definitional uncertainty noted by Lucas also applies to much of the remainder of the text.

While the declaration as a whole clearly represents a claim by the American People of a right to separate from Britain, the basis and ambit of the right are not self-evident. If, as some have

40 See e.g. Cassese (n 3) 11; Raič (n 13) 172–73; but, contra, Rodríguez-Santiago (n 11) 202–04, who finds precursors of the modern concept in the Fifteenth Century debates over the European colonisation of the Americas. The Declaration of Arbroath of 1320 exhibited some of the same ideas in protogeneous form.

41 ‘The Declaration of Independence: a Transcription’, U.S. National Archives & Records Administration, via

<www.archives.gov/exhibits/charters/declaration_transcript.html> accessed 12^th May 2014.

42 Stephen Lucas, ‘Justifying America: The Declaration of Independence as a Rhetorical Document’ in Thomas Benson (ed), American Rhetoric: Context and Criticism (Southern Illinois University Press 1989) 85.

43 The Declaration of Independence (n 41).

44 Lucas (n 42) 85.

suggested, the Declaration represents the first recognisable expression of a self-determination claim, it is not sufficient to identify simply by genus, however; in order to understand the origin of the principle and the precedent set by the Declaration it is necessary to understand the source of the claimed right, and thus to understand the legitimacy-claim made by its authors. In other words, it is necessary to examine the declaration and its language in more detail, to identify the species of self-determination it invokes.

The Declaration holds that, in order to protect the ‘unalienable Rights’ of man, ‘Governments are instituted among Men, deriving their just powers from the consent of the governed’.⁴⁵ Further:

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundations on such principles and organizing its powers in such a form, as to them shall seem most likely to effect their Safety and Happiness.⁴⁶

While certain principles can be discerned in these statements, there remains much which requires clarification. These statements endorse social contract theory, and deny the divine right of kings; recognising instead what may loosely be described as popular sovereignty. It remains unclear, however, whether the right to self-determine exists in and of itself, as one of the ‘unalienable’ rights of man, or whether it applies as a result of governmental abuses – a government ‘destructive’ of its proper ends.

Nor does the remainder of the document explicitly clarify the basis of the right claimed.

Although the Declaration holds that ‘Governments long established should not be changed for

45 The Declaration of Independence (n 41).

46 ibid.

light and transient causes’,⁴⁷ this is described as an obligation of ‘[p]rudence’,⁴⁸ rather than a limit on the right. Indeed, that abuses by governments are not preconditions for their overthrow is implied, if slightly, by Jefferson’s assertion that ‘a long train of abuses and usurpations’ results not merely in a right, but also a ‘duty’ to ‘throw off such a government’.⁴⁹ It may be significant, though, that while the intended effect of the document was secession, the text of the document speaks of the legitimacy of governments, and not of States. It may be inferred that two different incarnations of self-determination are engaged: the right to secede is concerned with the redrawing of political boundaries; the legitimacy of governments (political self-determination) necessarily presupposes those political delineations, and can only operate within them.

These are separate and distinct forms. The principle of political self-determination requires that the people of an entity should be able to freely choose what form their government will take, and is often defined according to the language of the declaration: government by the

‘consent of the governed’.⁵⁰ As Waldron correctly identifies, however, political self-determination neither requires, nor is analogous to, democracy; rather it is a prior and more basic concern.⁵¹ Political self-determination requires that the people subject to a government be the authors of the form of that government. The American people were subject to a form of government that was not of their choosing, and which they regarded as inimical to their needs. But in representations to the British people aimed at altering that governmental form, America found no common cause:

47 ibid.

48 ibid.

49 ibid.

50 ibid.

51 Waldron (n 24) 408.

We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity.⁵²

In other words, the Declaration makes no claim to secession as of right. Rather, secession is justified on the basis of a final resort: having exhausted the possibility of a change in the form of government of the State as a whole, the American people could secure their ‘unalienable’

rights only by ridding themselves of the control of the British State. This is an example of what has subsequently been termed the right to secede in extremis, or remedial self-determination,⁵³ and this statement reveals something of is inner workings. Far from being a facet of a broader right to secede (of “external” self-determination), it is connected to the political form.⁵⁴ Where a section of a population is denied the right to determine along with others in the State the form of its government (in other words, the denial of political self-determination), there results an exceptional right to secede. It is this remedial form of the norm that is claimed alongside political self-determination by the authors of the Declaration of 1776.⁵⁵ No claim to secessionary self-determination, or a right to secede based only on the distinctiveness of a group or nation, was made.

In referring to the Declaration as a claim of right it is important to note, however, that the American Declaration made appeal not to remedial self-determination as an idea conferring legality, but as an idea conferring legitimacy. This was a moral and political claim made by

52 The Declaration of Independence (n 41).

53 Buchanan, ‘Democracy and Secession’ (n 3) 24–25; Milena Sterio, The Right to Self-Determination under International Law: ‘Selfistans,’ secession, and the Rule of the Great Powers (Routledge 2013) 18–22; see also Allen Buchanan, ‘Theories of Secession’ (1997) 26 Philosophy & Public Affairs 31.

54 Tesón characterises remedial determination’s claim as a ‘right against a state’, while secessionary self-determination claims a ‘right to a state’. Tesón (n 2) 8. [Emphasis in original].

55 Rodríguez-Santiago (n 11) 206–07.

the authors that, as a people subject to abuses amounting to a denial of their internal self-determination, the secession of the Thirteen States from the British Empire was permissible and legitimate. They did not invoke a legal right to self-determination, and there is no indication that they considered in writing the Declaration that they were acting in accordance with, with the support of, or, indeed, in violation of international law.

As a political document the American Declaration of Independence is and will doubtless remain highly significant, including for its discussion of self-determination. The reader is presented with an apparent paradox: the intended effect of the document is secession, but the rhetoric relates to political self-determination. A further examination, however, reveals an implied connection between political self-determination and secession, and shows that denial of the former is conceived as the basis for the latter. This was a consequential right of secession, and not a pure appeal to nationhood or distinctiveness. It seems that it should, therefore, be categorised as an appeal to remedial self-determination, a form which finds its roots in the political rather than the secessionary idea. The Declaration was, however, merely the starting point, and the ideas inherent in the Declaration have been reconceptualised and restated in many different forms in the interim. Among the most significant of these subsequent statements was the product of the 1789 French Revolution.