National Self-Determination

Around the time of the advent of liberalism and the common heritage doctrine, another norm, with a much different purpose, emerged: national self-determination.  The modern idea of self-determination emerged in the late 18th century in congruence with the French and American revolutions.   In 1789, expressing the inalienable right of self-determination, the Third Estate, 600 elected commoners representing 95 percent of the French population, gathered in Versailles without the other two estates­the nobility and the clergy­and declared themselves the National Assembly.59  They pledged to continue and press for a new constitution.  In August of the same year, the National Assembly, in the Declaration of the Rights of Man and of the Citizen, proclaimed the principle of political sovereignty replacing the divine right of kings by the divine right of the people.60   National self-determination connotes the right and opportunity of people to determine their own government.61  The term also "contains the idea that 'a people' to whom this right ought justly to be conceded should be defined by nationality."62

Although there are many parallels, there is a potential conflict between liberalism and self-determination: while liberalism advocates individualism, self-determination calls for group identity.  To create this identity, oftentimes a nation must be engrossed in a sovereign state. Historically large empires, prevalent in 19th century Europe, prevented nations from gaining their manifest destiny-statehood.  They spread over vast territories and were inhabited by numerous nationalities.  Very often, due to religious or historical reasons, these groups clashed. When nations gained recognition through statehood, other groups challenged their sovereignty.  One of the main questions in applying the self-determination doctrine is "who is the 'self' to whom the right of self-determination attaches?"63  The dilemma in deciding who is a "self" is immediately evident: "recognition of the rights of one 'self' entails a denial of right of a competing 'self'."64  In other words, every demand for self-determination preempts a countervailing demand by another national group.  Soon Europe was faced with a question: Who deserves it more?

By the same token, the question of what constitutes national identity was also prevalent in 19th century Europe.  Groups have been characterized as entities that have both "a distinct existence apart from [their] members, and ones recognized by a condition of interdependence where the identity and well-being of the members and the group are linked."65  Throughout history, groups identify cultural objects that characterize their greatness and exemplify the richness of their culture.   Those urging self-determination for a given group, also call for the preservation of cultural property of that given nation and repatriation of cultural objects, which at one point belonged to that nation or its people.  For them, cultural property is analogous to

group identity as "art speaks directly to the inner consciousness within which we resolve whether we do really feel a sense of belonging to a group or community [and] links group members to their ancestors and heirs, thereby both satisfying a basic need for identity and symbolizing shared values."66  John Moustakas avers that "group rights exist independently, however, they merit the protections and the powers afforded [to] individuals, including in some cases, the right to control property."67 Some groups may view a cultural artifact as a "living thing which enables them to achieve confidence in themselves and, thus, able to imagine their future."68   A group's attachment to an object symbolizes history and cultural identity. Furthermore, the association of art with its geographical-historical milieu elevates the object's significance.69  An object that is displaced from its place of origin loses its context and its overall meaning.  A piece of art not only has extravagant beauty, but it also has a historic importance as it is often associated with a nation or a culture.

As nations acquired statehood, they preserved their cultural artifacts and opted to enter into international agreements that prohibited the plunder of cultural property. Cultural objects helped to "determine" their existence, and as a result they chose to sign on to legislation to help prohibit the plunder of such objects during war.  As such, the issue of cultural property protection was not a question of the common heritage of mankind, but that of national identity.  States did not intend to bind themselves to an agreement to protect the heritage of mankind, rather they intended to protect their own heritage at times of war.  Essentially, the emergence of cultural protection laws came with the development of self-determination as a viable force changing the shape of Europe.  The conflict between self-determination and the universalism of the Enlightenment era can also be seen in a larger context.

Self-determination gained a great deal of force throughout the 19th century as nations declared their territorial sovereignty.  Authors embracing nationalism and group identity found their place in literature of that time challenging Enlightenment ideology.  The German reaction to the French Enlightenment, voiced by Von Herder in Another Philosophy of History, evoked not a universal concept of progress, a Hegelian Weltgeist, but a Volksgeist, the innate spirit of each nation.70  Contrary to Enlightenment philosophy, Von Herder held that "there is no universal notion of the Good, the True, and the Beautiful, to be apprehended by natural reason.  All norms are socially and historically contexted.  All have local origin and local definition. For the French to assert otherwise, said Herder, displayed their arrogance.   Germany found its unity, its exaltation and in turn its own brutal arrogance in combating France under the concept of a German Volk."71

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Alexander Frid - The Common Heritage Doctrine and... [1] [2] [3] [4] [5] [6] [7] [8] [9] [10]