How do we decide on a country’s ‘right to exist? - Andrew Stevenson

These can be complicated. One tutorial with the late Gerry Maher concerned the notion that inanimate things may possess rights. One scenario was whether a brick being thrown through a window had the right not to be thrown and whether the window had a right not to be broken.

All very abstract and abstruse, the kind of discourse beloved of law students before they have to go out and earn a living in the real world.

True, artificial legal persons which may act through human means such as limited companies or countries undoubtedly have rights which can meaningfully be exercised. But does any artificial entity have the right to exist?

Take a charity such as the National Society for the Prevention of Cruelty to Children. Nobody could be so uncaring or diabolical as to suggest there ought not to be such a society. However, to say that it has a right to exist is a bizarre proposition.

The notion that a country, any country, has a right to exist is even more curious and rather meaningless too. If the answer is in the affirmative, a great many such rights have been breached.

History is a graveyard of now extinct states; the Crusader Principality of Antioch, the Holy Roman Empire, New Caledonia (aka Darien) and the Margraviate of Moravia to name but four.

Far more recently, since the Second World War, various countries have existed in fact. A government may have exercised de facto control over a state in circumstances where there has been little or no international recognition of its legal existence; Northern Cyprus, Katanga and Biafra, for instance.

During the 15 years after its Unilateral Declaration of Independence in 1965, had the question been asked “Does Rhodesia have the right to exist?” the reaction would probably have been perplexity at such a peculiar question followed by “no”. Many would have given the same answer to whether the South African Bantustans, the Soviet Union, Yugoslavia or either of the two Germanies should have existed.

Indeed, as to whether the United Kingdom has “the right to exist” it is quite possible that almost half, or maybe more than half of the populations of Scotland and Northern Ireland would say not.

An answer in the negative does not of itself imply any antagonism towards the inhabitants of the state. To dispute a country’s right to exist does not necessarily imply any feelings of ill-will towards one’s fellow human beings who happen to live there.

Of course, there is more to it than this merely being a daft question. Rather than being a serious enquiry, it is something of a rhetorical contrivance. Questions as well as rights can be devices designed to drive others to accept propositions that they would otherwise resist, question or qualify.

Most lawyers are familiar with the cross-examiner’s notorious question “When did you stop beating your wife?”

If answered in the negative, “Does Transnistria have the right to exist” misleadingly implies that the answerer is hostile toward the largely unrecognised state to the extent of wishing that it be vanquished and its inhabitants cast into the wilderness. If answered affirmatively, it compels the answerer to accept that the territory must have the right to defend its existence by any means whatsoever. It is time to abandon the sophistry and instead to speak plainly on matters of international politics.

Andrew Stevenson is Secretary, Scottish Law Agents Society