Former UK Ambassador Charles Crawford asks these tricky questions when it comes to issues of independence, migration, UN reform and Brexit

Down the ages humans have invented only two ways of running things:

– Do what I say, or else!

– The consent of the governed

In the first case – the dominant model for most of human history – the ruler’s authority and legitimacy come from the simple fact of force. Take Macbeth. Macbeth kills the king and becomes king. Macduff kills Macbeth and becomes king. That’s how Scotland at that point in its history is run.

Kings. Queens. Popes. Tsars. Emperors. Dictators. All of them have ruled because they ruled. Only in very rare cases has the wider populace been given any say in choosing the ruler. For two centuries Poland experimented with a strange system that allowed the massed nobility to elect the king. Thousands of Polish nobles came together to choose the next monarch, a complicated (and often violent) process. Outside powers of course sought to influence the process in their favour. Prussia, Russia and Austria eventually ended this boring jockeying for influence within Poland by simply abolishing Poland, carving up its territory between them.

The American Revolution introduced a completely different idea:

Governments are instituted among Men, deriving their just powers from the consent of the governed

Thus came elections and democracy, allowing (some) citizens to choose their leaders. In Europe and in the United States, originally a ‘white’ male propertied elite first enjoyed that right. Eventually all citizens were included. But that poses new questions: who’s a citizen eligible to vote, and how does one become one?

Hence the topic at the heart of most international and many domestic issues. Who decides the rules? And, above all, who chooses the people who then set the rules? Those who decide who decide effectively run everything.

Some examples.

Brexit

The Brexit debate in the UK is so messy because our higgledy-piggledy written-unwritten constitution has never decided who decides. In principle, Parliament is sovereign. But what does that mean?

Can Parliament simply vote without a referendum that the UK leave the European Union? If there is a referendum in which the UK public vote to leave the EU, can Parliament then ignore the referendum result, or otherwise manoeuvre to thwart the process, or demand a vote on the final UK/EU negotiation outcome? What if Scotland votes Remain?

Do the courts have any role? Which courts? UK courts, or the European Court of Justice? Which law(s) do they follow? UK law or EU law? Who decides what a decision is?

It’s scarcely surprising that it is taking months for the British government to take the plunge and launch the EU Treaties’ Article 50 procedure triggering the negotiations for the UK to leave the European Union. What then happens is no less uncertain. Some of the detailed haggling may take far longer than the two years laid down by Article 50. Maybe decades.

Amidst all the arguing there will be noisy jostling for position between the European Commission, the European Parliament and member state governments over who decides the final shape of the deal and its ‘tone.’ While all that drags on, a small group of leaders from the UK with the EU Bigs (Germany and France with Italy, Spain, Netherlands and Poland) will strike the strategic deal on one side of a piece of paper.

Bosnia and Herzegovina

When the Socialist Federal Republic of Yugoslavia broke up in the early 1990s, conflict broke out in several republics over the terms of the collapse. Who decided those terms, and who decided the borders of the new states emerging from the confusion? Bosnia’s population was divided between Bosniacs/Muslims, Serbs and Croats, with the three communities having radically different ideas about the best result. Serbia and Croatia muscled in.  There was a ruinous war in Bosnia.

The 1995 Dayton Peace Accords accepted the principle that the country would move forward as two ‘Entities’ within one international personality. It included a new constitution for the country that failed to decide in a sensible way who decides. The country was given a three-person Presidency job-share, with a Bosniac and Croat elected from one Entity and a Serb elected from the other.

However, not all Bosnians identify themselves as either Bosniac, Serb or Croat, so another constitutional community category called ‘Others’ was invented. The constitution did not allow anyone identified as an Other to run for the Presidency in either Entity. This meant that the constitutional provisions for electing the Presidency were at odds with other constitutional provisions proscribing discrimination based on ethnicity. In other words, the BH constitution agreed at Dayton had the rare distinction of being unconstitutional.

This issue goes right to the heart of the country’s identity: who decides what that identity is, and who decides who decides? Twenty-two years after the Dayton agreement led to a generous investment in peace by the international community, the country is hopelessly bogged down in bad-tempered bickering.

Kosova/Kosovo – related precedents?

Another set of issues down the road from Bosnia shows again how the uncontrolled collapse of Yugoslavia has produced problems that mere diplomacy seems unable to solve. They include this: is Kosova (as its Albanian-speaking community call it) or Kosovo (as the Serbs call it) an independent state, or not?

The majority of states in the world including the US, Japan, Nigeria and most EU members have said yes. But a sizeable minority of states including China, India, Russia, Mexico and South Africa, plus several EU members, say a firm no. Result? Deadlock blighting Kosovo’s already modest economic prospects.

Russia has pounced on this dismal precedent for its own purposes, to proclaim that it recognises tiny Abkhazia on the Black Sea as an independent state. Russia musters only Nicaragua, Venezuela and Nauru on its side of this embarrassing assertion.

Nor does Moscow blush at the contradictions in its positions. Yes, the people of Crimea vote to join Russia, so Russia takes Crimea from Ukraine. No, the people of Chechnya (or Siberia) can’t vote to leave Russia, and will be sent to prison if they even suggest it. Yes, the people of Kosovo have voted overwhelmingly to leave Serbia, but Kosovo’s independence won’t be recognised.

In Russia things are simple. Who decides? The Kremlin. Who decides who decides? The Kremlin.

Migration

Migration in today’s globalised globe is all about who decides the rules. Is there a sensible or fair way to limit migration by numbers, or by categories of migrants, or both? Is it legitimate that any state taking in considerable numbers of migrants sets limits to ‘preserve its identity’? What rules work in principle, and what work in real life? Walls?

Lots of issues of principle and practice get entangled here, but the core rules concern the rights of migrants eventually to get to vote in their new country. Dubai is very liberal when it comes to letting in foreigners, but it’s next to impossible for any non-Emirati to gain any formal say in setting Dubai’s rules.

Thus the heated debates in Europe as refugees and would-be migrants try to get into the European Union. On what basis should they be allowed to enter the Schengen space, and where then do they go? Can EU HQ in Brussels compel EU member states to accept quotas of non-EU migrant foreigners? Who decides? Politicians? Courts? Real life?

Hungary’s Prime Minister Orbán does not mince his words: “We must decide who we let in, and who we do not let in. But who should decide on this: Brussels or the nation states?”

It becomes more and more difficult for Europe. In the decades to come the iron laws of global demographics will be taking the key decisions.

UN Security Council reform

The UN itself is arguably the main pinnacle of global rule-making.

UN Security Council (UNSC) resolutions are agreed by all states to be binding under international law. So the fact that the US, China, Russia, France and UK not only have permanent UNSC seats but also the right to block decisions by the Council gives them a hugely privileged position.  But why are two European countries included, but no Latin American or African countries?

Is the UNSC’s composition fair? No. Those rules reflect the very different world order when the UN was set up after World War II. But is it any less unfair that in the UN General Assembly India, with over one billion people, has the same voting weight as (say) Brunei with only some 400,000 people?

It’s easy enough to complain about the way decisions are taken in the UN system. What’s next to impossible is to find a formula for changing it that all (including the currently privileged five UNSC permanent members themselves) will accept.

Because here the Permanent Five decide who decides. And why should they vote their own power away?