We often take it as an uncontested claim that nations have a right to exist. Unfortunately, the only time this claim is contested is when it’s too late to deliberate about the matter because the violence has started. In the current conflict between Israel and Hamas the question of whether a nation has a right to exist is front and center. But the question whether a nation has a right to exist is never deliberated upon in any depth because the immediate concern is how to stop the fighting. The immediacy and reality of the problem makes it almost impossible to consider the most fundamental question. Therefore, if we want to consider the question we must do so in a different context when there is no immediate threat of violence. The release of Steven Spielberg’s Lincoln provides a good opportunity for considering whether nations have a right to exist.
The question Abraham Lincoln was faced with in 1861 was not whether to abolish slavery but whether a state could secede from the United States and create a new nation. It was not until 1863, almost two years after the Civil War began with the first shots at Fort Sumter, that Lincoln issued the Emancipation Proclamation. The Proclamation did not carry the legal force of the 13th Amendment that was ratified in 1865, but it was an executive order that emancipated the slaves in the Confederate states while leaving the status of slaves and former slaves in Union controlled areas unchanged.
We might understand Lincoln’s delay in emancipating the slaves because he was preoccupied with a more fundamental issue—whether a nation had a right to exist. After South Carolina seceded in 1860, ten others states followed to form the Confederate States of America. The Confederacy had a constitution, a functioning government and military. By every conventional measure it was a nation. But it was one nation opposed by another.
The American Civil War proved that no nation has a right to exist. Nations exist only to the extent they can enforce their claim. Because there is no way to establish, beyond dispute, the rightful owner or possessor of a geographical area, there is no way other than violence or negotiation to establish or maintain a nation. Bargaining and violence do not create rights in the same way they create nations. Nations and rights are ontologically incongruent. What if someone told you that your right to freedom of speech only existed to the extent you could defend it? And what if you could not appeal to any natural law or moral imperative in your defense? That’s what it’s like defending the right for a nation to exist. To prove a right you have to navigate the matrix of history and morality. To prove a nation has a right to exist one would have to show that historically it did not use illegitimate means to acquire the territory and that it has the moral authority to claim the territory as its own and therefore deny someone else the same benefit. Such a task is, if not impossible, intractable.
But we can’t stop at saying nations do not have the right to exist for then we have a world in which we legitimize the idea that might makes right, meaning, its yours if you can take it. Therefore, an addendum must be made: No nation, or other entity, has a right to end a nation. So while no nation has a right to exist no other nation has a right to end its existence. Such a formulation denies the rights that only force can protect and therefore delegitimizes force.
This formulation of rights will not end wars, for rule breakers will always exist. If someone or something threatens another nation’s existence through force then the only option is to resist that threat through force. But, what this formulation of rights does provide is a foundation on which we can craft international law and treaties. Before we can hold transgressors accountable we must have an objective standard by which we decide what a transgression is so that we might then know who is the transgressor. This standard cannot be met without first cleaning up how we talk about rights.