Redrawing Maps, Manipulating Demographics: On Exchange of Populated Territories and Self-Determination

In “The Blessing of Departure—Exchange of Populated Territories The Lieberman Plan as an Abstract Exercise in Demographic Transformation,” Prof. Timothy Waters offers a strong endorsement of the right of ethnic majorities within a state to redefine their state's boundaries in ways consistent with the majority's right to self-determination and to opt out of a political union with minority groups, regardless of the latter's' political preferences. Applied to the Israeli context, Waters concludes that parts of the Lieberman Plan—a plan advocating the redrawing of Israel borders, inter alia, in ways which exclude some areas populated by Israeli citizens belonging to the Arab-Palestinian minority (Israeli-Arabs)—does not run afoul of international law (although Waters accepts that the Plan might be politically undesirable).This short response challenges two points that are central to Waters’s analysis. First, that the right to self-determination of peoples—in particular, the right to external self-determination (i.e., the right to create independent or other types of polities that express the will of an identifiable “people”)—is subject to temporal or contextual limitations. The right is fully applicable only in exceptional and formative moments in the life of a nation—e.g., during the formation of a new polity or the collapse of an existing political arrangement (which invites the configuration of new political entities in their lieu), and when states systematically fail to respect the basic interest of some of the groups that comprise its populace—i.e., in response to extraordinary situations of groups exclusion or oppression. Second, even if Waters is correct and an ongoing right to self-determination—including, a right to secede from existing states—is available to ethnic groups comprising diverse national societies, the invocation of such a right must necessarily be limited by other positive rules of international law designed to protect group and individual interests. Specifically, Waters’s concept of self-determination as a right of a preliminary nature, that overrides other human rights (which are themselves often characterized as rights of a pre-political nature), is debatable.