2 Law & Ethics of Human Rights 221 (2008)
What limits ought there be on a state's ability to create a homogeneous society, to increase or perpetuate non-diversity, or to create hierarchies within existing diversity? This paper examines those questions with reference to the Lieberman Plan - which proposes to transfer populated territories from Israel to the Palestine in exchange for Jewish settlements on the West Bank - as an abstract exercise in demographic transformation by the state.
First the article considers if the Lieberman plan would "work": Would it create the alterations it proposes, and would those changes achieve a stable, peaceful, even just settlement? It finds that though there is debate about the possible effects, there is little doubt that transfer would alter the state's demography; objections about feasibility are really based on a conviction that transfer is undesirable. Similarly, transfer is fundamentally different from ethnic cleansing or apartheid, since it leaves people where they are and moves borders around them.
The article then turns to the international standards that might govern the transfer of territory and citizens, to see how they would characterize such a plan. It finds that there is no rule requiring states to condition transfer of territory on the consent of the affected population, and that norms protecting citizenship are considerably more complex than they first appear - even allowing ethnically targeted denaturalization in some cases.
The article then analyzes the loyalty provisions of the Lieberman Plan, and notes, contrary to the usual normative assumption, that the foundations of citizenship are actually shared identity and values which derive from a habitual or formative link to a given territory, which in turn creates a right to citizenship not in any particular state, but in the one that incidentally is sovereign over that territory. This interaction of citizenship and territory, when considered together with equal protection norms, suggests that the polity has an interest in defining its own territorial scope and thereby its membership. Human rights do not dictate a particular political dispensation; they do not dictate the shape of any polity.
The article proposes a neo-Wilsonian interpretation of self-determination to explain how transfer might be assimilated to existing norms. The present doctrinal regime is ambiguous, and deliberations about this question sound in the realm of politics. The right of Jews, as a self-defining group, to self-determination might entitle them to reassess their union with the Arab population of Israel and to in effect secede from the existing broader multi-ethnic state. In fact, all two-state solutions implicitly confirm the continued relevance of division of communities along ethnic lines in the Israeli-Palestinian context. Curiously, therefore, the Lieberman Plan is actually one of the more candid and more generous proposals, in that it acknowledges the logic underlying self-determination: that a self-defining community cannot extend its political dominion over another group, but rather must withdraw.
Finally, the article notes that international law, though it polices excesses by states, is almost entirely silent about the most decisive factor in controlling demography: the fact of state sovereignty over territory.
Waters, Timothy W., "The Blessing of Departure: Acceptable and Unacceptable State Support for Demographic Transformation: The Lieberman Plan to Exchange Populated Territories in Cisjordan" (2008). Articles by Maurer Faculty. Paper 22.