No Alternative to Despair? Sahrawis, Palestinians and the International Law of Nationalism

Abstract

This article builds upon Nathaniel Berman’s work, which explores how the world community has framed and regulated questions of nationalism since the Concert of Europe began to fray in the late nineteenth century. Berman demonstrates that the international legal order has created, repudiated, and revived classifications of group identity and has repeatedly realigned its preferences amongst these classifications. These ruptures demarcate the various eras of the international law of nationalism, which Berman defines as “a historically contingent array of doctrinal and policy options for deployment by a contingent embodiment of international authority on nationalist conflicts whose protagonists are designated by a contingent set of legal categories.”

This article adopts Berman’s framework and honors his commitment to deconstruction rather than prescriptions. It explores the constitutive aspect of the law, and specifically the constitutive aspect of culture in law. The cultural judgments which the international authority of various eras inscribed upon the Sahrawis and the Palestinians along their way to protagonist status in the international law of nationalism bear on the reception to (and regulation of) their nationalist claims until today. It traces the way that realignments in the conceptualization and regulation of group identity and national aspirations, most notably in the Realist response to decolonization, have impacted the Sahrawis and the Palestinians in their pursuit of self-determination. It further examines whether and how the internationally-recognized representative of each group – the Frente Polisario and the Palestine Liberation Organization – has sought to keep pace with these shifts in the legal landscape.