The diffusion of sovereignty: Self-determination in the post-colonial age

Stanford Journal of International Law

Volumn 32, Issue 2, 1996, Pages 255-286

  Simpson, Gerry J ^a,b,c  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

^b UNIVERSITY OF ABERDEEN   (United Kingdom)

^c UNIVERSITY OF BRITISH COLUMBIA   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0030507113     PISSN: 07315082     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (185)

1. JAMES JOYCE, ULYSSES 331 (Vintage Books 1961) (1914) (emphasis added).
2. DANIEL P. MONYIHAN, PANDAEMONIUM: ETHNICITY IN INTERNATIONAL POLITICS 15 (1994).
3. Apart from the most egregious forms of colonialism (East Timor and Tibet) and neocolonialism (Guatemala and Nigeria), it is generally recognized that most (especially large) nations are founded on imperial pretensions (the belief in national destiny and the conquest of territory in its pursuit) and none have fully accommodated the self-determinative rights of their minorities or indigenous groups (e.g., Native Americans in the United States, the Sami people in Sweden, the Aborigines in Australia, the Basques in Spain).
4. See MICHAEL IGNATIEFF, BLOOD AND BELONGING: JOURNEYS INTO THE NEW NATIONALISM (1993).
5. There has been a prodigious amount of writing on self-determination over the past thirty years. Much of this work has been either positivistic in nature, i.e., denying the existence of a legal right to self-determination within the colonial context (see, e.g., Leo Gross, Self-Determination in International Law, in NEW STATES IN THE MODERN WORLD 136 (Martin Kilson ed., 1971); Rupert Emerson, Self-Determination, 65 AM. J. INT'L L. 459 (1971)), or pseudo-legislative, i.e., devising reform proposals for world order (see, e.g., Lung-Chu Chen, Self-Determination as a Human Right, in TOWARD WORLD ORDER AND HUMAN DIGNITY 198 (W. Michael Reisman & Burns H. Weston eds., 1976); Eisuke Suzuki, Self-Determination and World Public Order: Community Responses to Territorial Separation, 16 VA. J. INT'L L. 779 (1976)) or pragmatically conservative (see, e.g., Lea Brilameyer, Secession and Self-Determination: A Territorial Interpretation, 16 YALE J. INT'L L. 177 (1991) (arguing that secession should be grounded on territorial claims)). A number of commentators have extracted meanings from international law instruments which bear little resemblance to the realities of customary international law (see, e.g., Frank Przetacznik, The Basic Collective Human Right to Self-determination of Peoples and Nations as a Pre-requisite to Peace, 8 N.Y.L. SCH. J. HUM. RTS. 49 (1990)).
6. There has been a prodigious amount of writing on self-determination over the past thirty years. Much of this work has been either positivistic in nature, i.e., denying the existence of a legal right to self-determination within the colonial context (see, e.g., Leo Gross, Self-Determination in International Law, in NEW STATES IN THE MODERN WORLD 136 (Martin Kilson ed., 1971); Rupert Emerson, Self-Determination, 65 AM. J. INT'L L. 459 (1971)), or pseudo-legislative, i.e., devising reform proposals for world order (see, e.g., Lung-Chu Chen, Self-Determination as a Human Right, in TOWARD WORLD ORDER AND HUMAN DIGNITY 198 (W. Michael Reisman & Burns H. Weston eds., 1976); Eisuke Suzuki, Self-Determination and World Public Order: Community Responses to Territorial Separation, 16 VA. J. INT'L L. 779 (1976)) or pragmatically conservative (see, e.g., Lea Brilameyer, Secession and Self-Determination: A Territorial Interpretation, 16 YALE J. INT'L L. 177 (1991) (arguing that secession should be grounded on territorial claims)). A number of commentators have extracted meanings from international law instruments which bear little resemblance to the realities of customary international law (see, e.g., Frank Przetacznik, The Basic Collective Human Right to Self-determination of Peoples and Nations as a Pre-requisite to Peace, 8 N.Y.L. SCH. J. HUM. RTS. 49 (1990)).
7. There has been a prodigious amount of writing on self-determination over the past thirty years. Much of this work has been either positivistic in nature, i.e., denying the existence of a legal right to self-determination within the colonial context (see, e.g., Leo Gross, Self-Determination in International Law, in NEW STATES IN THE MODERN WORLD 136 (Martin Kilson ed., 1971); Rupert Emerson, Self-Determination, 65 AM. J. INT'L L. 459 (1971)), or pseudo-legislative, i.e., devising reform proposals for world order (see, e.g., Lung-Chu Chen, Self-Determination as a Human Right, in TOWARD WORLD ORDER AND HUMAN DIGNITY 198 (W. Michael Reisman & Burns H. Weston eds., 1976); Eisuke Suzuki, Self-Determination and World Public Order: Community Responses to Territorial Separation, 16 VA. J. INT'L L. 779 (1976)) or pragmatically conservative (see, e.g., Lea Brilameyer, Secession and Self-Determination: A Territorial Interpretation, 16 YALE J. INT'L L. 177 (1991) (arguing that secession should be grounded on territorial claims)). A number of commentators have extracted meanings from international law instruments which bear little resemblance to the realities of customary international law (see, e.g., Frank Przetacznik, The Basic Collective Human Right to Self-determination of Peoples and Nations as a Pre-requisite to Peace, 8 N.Y.L. SCH. J. HUM. RTS. 49 (1990)).
8. There has been a prodigious amount of writing on self-determination over the past thirty years. Much of this work has been either positivistic in nature, i.e., denying the existence of a legal right to self-determination within the colonial context (see, e.g., Leo Gross, Self-Determination in International Law, in NEW STATES IN THE MODERN WORLD 136 (Martin Kilson ed., 1971); Rupert Emerson, Self-Determination, 65 AM. J. INT'L L. 459 (1971)), or pseudo-legislative, i.e., devising reform proposals for world order (see, e.g., Lung-Chu Chen, Self-Determination as a Human Right, in TOWARD WORLD ORDER AND HUMAN DIGNITY 198 (W. Michael Reisman & Burns H. Weston eds., 1976); Eisuke Suzuki, Self-Determination and World Public Order: Community Responses to Territorial Separation, 16 VA. J. INT'L L. 779 (1976)) or pragmatically conservative (see, e.g., Lea Brilameyer, Secession and Self-Determination: A Territorial Interpretation, 16 YALE J. INT'L L. 177 (1991) (arguing that secession should be grounded on territorial claims)). A number of commentators have extracted meanings from international law instruments which bear little resemblance to the realities of customary international law (see, e.g., Frank Przetacznik, The Basic Collective Human Right to Self-determination of Peoples and Nations as a Pre-requisite to Peace, 8 N.Y.L. SCH. J. HUM. RTS. 49 (1990)).
9. There has been a prodigious amount of writing on self-determination over the past thirty years. Much of this work has been either positivistic in nature, i.e., denying the existence of a legal right to self-determination within the colonial context (see, e.g., Leo Gross, Self-Determination in International Law, in NEW STATES IN THE MODERN WORLD 136 (Martin Kilson ed., 1971); Rupert Emerson, Self-Determination, 65 AM. J. INT'L L. 459 (1971)), or pseudo-legislative, i.e., devising reform proposals for world order (see, e.g., Lung-Chu Chen, Self-Determination as a Human Right, in TOWARD WORLD ORDER AND HUMAN DIGNITY 198 (W. Michael Reisman & Burns H. Weston eds., 1976); Eisuke Suzuki, Self-Determination and World Public Order: Community Responses to Territorial Separation, 16 VA. J. INT'L L. 779 (1976)) or pragmatically conservative (see, e.g., Lea Brilameyer, Secession and Self-Determination: A Territorial Interpretation, 16 YALE J. INT'L L. 177 (1991) (arguing that secession should be grounded on territorial claims)). A number of commentators have extracted meanings from international law instruments which bear little resemblance to the realities of customary international law (see, e.g., Frank Przetacznik, The Basic Collective Human Right to Self-determination of Peoples and Nations as a Pre-requisite to Peace, 8 N.Y.L. SCH. J. HUM. RTS. 49 (1990)).
10. There has been a prodigious amount of writing on self-determination over the past thirty years. Much of this work has been either positivistic in nature, i.e., denying the existence of a legal right to self-determination within the colonial context (see, e.g., Leo Gross, Self-Determination in International Law, in NEW STATES IN THE MODERN WORLD 136 (Martin Kilson ed., 1971); Rupert Emerson, Self-Determination, 65 AM. J. INT'L L. 459 (1971)), or pseudo-legislative, i.e., devising reform proposals for world order (see, e.g., Lung-Chu Chen, Self-Determination as a Human Right, in TOWARD WORLD ORDER AND HUMAN DIGNITY 198 (W. Michael Reisman & Burns H. Weston eds., 1976); Eisuke Suzuki, Self-Determination and World Public Order: Community Responses to Territorial Separation, 16 VA. J. INT'L L. 779 (1976)) or pragmatically conservative (see, e.g., Lea Brilameyer, Secession and Self-Determination: A Territorial Interpretation, 16 YALE J. INT'L L. 177 (1991) (arguing that secession should be grounded on territorial claims)). A number of commentators have extracted meanings from international law instruments which bear little resemblance to the realities of customary international law (see, e.g., Frank Przetacznik, The Basic Collective Human Right to Self-determination of Peoples and Nations as a Pre-requisite to Peace, 8 N.Y.L. SCH. J. HUM. RTS. 49 (1990)).
11. More recent scholarship has attempted just such a recuperation and in the process has become more modestly analytical. See, e.g., Patrick Thornberry, Self-determination, Minorities, Human Rights: A Review of International Instruments, 38 INT'L & COMP. L.Q. 867 (1989) (analyzing self-determination from the perspective of minorities); Nathaniel Berman, Sovereignty in Abeyance: Self-determination and International Law, 7 WIS. INT'L L.J. 51 (1988) (demonstrating the internal tensions in theories and applications of self-determination in mainly judicial materials); Philip Allott, The Nation as Mind Politic, 24 N.Y.U. J. INT'L L. & POL.. 1361 (1992); Edward M. Morgan, The Imagery and Meaning of Self-Determination, 20 N.Y.U. J. INT'L L. & POL. 355 (1988) (exploring the literary meaning of self-determination). For a more prescriptive approach based on human rights law, see Robert McCorquodale, Self-Determination: A Human Rights Approach, 43 INT'L & COMP. L.Q. 857 (1994).
12. More recent scholarship has attempted just such a recuperation and in the process has become more modestly analytical. See, e.g., Patrick Thornberry, Self-determination, Minorities, Human Rights: A Review of International Instruments, 38 INT'L & COMP. L.Q. 867 (1989) (analyzing self-determination from the perspective of minorities); Nathaniel Berman, Sovereignty in Abeyance: Self-determination and International Law, 7 WIS. INT'L L.J. 51 (1988) (demonstrating the internal tensions in theories and applications of self-determination in mainly judicial materials); Philip Allott, The Nation as Mind Politic, 24 N.Y.U. J. INT'L L. & POL.. 1361 (1992); Edward M. Morgan, The Imagery and Meaning of Self-Determination, 20 N.Y.U. J. INT'L L. & POL. 355 (1988) (exploring the literary meaning of self-determination). For a more prescriptive approach based on human rights law, see Robert McCorquodale, Self-Determination: A Human Rights Approach, 43 INT'L & COMP. L.Q. 857 (1994).
13. More recent scholarship has attempted just such a recuperation and in the process has become more modestly analytical. See, e.g., Patrick Thornberry, Self-determination, Minorities, Human Rights: A Review of International Instruments, 38 INT'L & COMP. L.Q. 867 (1989) (analyzing self-determination from the perspective of minorities); Nathaniel Berman, Sovereignty in Abeyance: Self-determination and International Law, 7 WIS. INT'L L.J. 51 (1988) (demonstrating the internal tensions in theories and applications of self-determination in mainly judicial materials); Philip Allott, The Nation as Mind Politic, 24 N.Y.U. J. INT'L L. & POL.. 1361 (1992); Edward M. Morgan, The Imagery and Meaning of Self-Determination, 20 N.Y.U. J. INT'L L. & POL. 355 (1988) (exploring the literary meaning of self-determination). For a more prescriptive approach based on human rights law, see Robert McCorquodale, Self-Determination: A Human Rights Approach, 43 INT'L & COMP. L.Q. 857 (1994).
14. More recent scholarship has attempted just such a recuperation and in the process has become more modestly analytical. See, e.g., Patrick Thornberry, Self-determination, Minorities, Human Rights: A Review of International Instruments, 38 INT'L & COMP. L.Q. 867 (1989) (analyzing self-determination from the perspective of minorities); Nathaniel Berman, Sovereignty in Abeyance: Self-determination and International Law, 7 WIS. INT'L L.J. 51 (1988) (demonstrating the internal tensions in theories and applications of self-determination in mainly judicial materials); Philip Allott, The Nation as Mind Politic, 24 N.Y.U. J. INT'L L. & POL.. 1361 (1992); Edward M. Morgan, The Imagery and Meaning of Self-Determination, 20 N.Y.U. J. INT'L L. & POL. 355 (1988) (exploring the literary meaning of self-determination). For a more prescriptive approach based on human rights law, see Robert McCorquodale, Self-Determination: A Human Rights Approach, 43 INT'L & COMP. L.Q. 857 (1994).
15. More recent scholarship has attempted just such a recuperation and in the process has become more modestly analytical. See, e.g., Patrick Thornberry, Self-determination, Minorities, Human Rights: A Review of International Instruments, 38 INT'L & COMP. L.Q. 867 (1989) (analyzing self-determination from the perspective of minorities); Nathaniel Berman, Sovereignty in Abeyance: Self-determination and International Law, 7 WIS. INT'L L.J. 51 (1988) (demonstrating the internal tensions in theories and applications of self-determination in mainly judicial materials); Philip Allott, The Nation as Mind Politic, 24 N.Y.U. J. INT'L L. & POL.. 1361 (1992); Edward M. Morgan, The Imagery and Meaning of Self-Determination, 20 N.Y.U. J. INT'L L. & POL. 355 (1988) (exploring the literary meaning of self-determination). For a more prescriptive approach based on human rights law, see Robert McCorquodale, Self-Determination: A Human Rights Approach, 43 INT'L & COMP. L.Q. 857 (1994).
16. See Gerald B. Helman & Steven R. Ratner, Saving Failed States, FOREIGN POL'Y, Winter 1992-93, at 3. See also S.C. Res. 923, U.N. SCOR, 3385th mtg., 115, U.N. Doc. S/RES/923 (1994) ("[d]eterrnining that the situation in Somalia continues to threaten peace and security ... including in particular the absence of a government in Somalia....").
17. See, e.g., IGNATIEFF, supra note 4.
18. See generally MICHLA POMERANCE, SELF-DETERMINATION IN LAW AND PRACTICE: THE NEW DOCTRINE IN THE UNITED NATIONS (1982).
19. Notably, East Timor and the Western Sahara. See Roger S. Clark, The "Decolonization" of East Timor and United Nations Norms on Self-Determination and Aggression, 7 YALE J. WORLD PUB. ORD. 2 (1980); Gerry J. Simpson, Judging the East Timor Dispute: Self-determination at the World Court, 17 HASTINGS INT'L & COMP. L. REV. 323 (1994).
20. Notably, East Timor and the Western Sahara. See Roger S. Clark, The "Decolonization" of East Timor and United Nations Norms on Self-Determination and Aggression, 7 YALE J. WORLD PUB. ORD. 2 (1980); Gerry J. Simpson, Judging the East Timor Dispute: Self-determination at the World Court, 17 HASTINGS INT'L & COMP. L. REV. 323 (1994).
21. See Yehuda Z. Blum, Reflections on the Changing Concept of Self-Determination, 10 ISR. L. REV. 509 (1975) (arguing that during the colonial period a succession of claims to exercise self-government were denied the appellation self-determination because, despite their comparable moral weight, they did not fit precisely the colonial model).
22. This is not to devalue the work being undertaken in Geneva at the Working Group, but rather to suggest that the United Nations does not regard it as a pressing issue. The Working Group operates at the bottom of a hierarchy running from it to the Sub-Commission on Minorities, to the Human Rights Commission, to ECOSOC, to the General Assembly itself. See Catherine J. Iorns, Indigenous Peoples and Self-Determination: Challenging State Sovereignty, 24 CASE W. RES. J. INT'L L. 199 (1992).
23. Since about 1970, a number of international lawyers have argued that the United Nations was obliged to confront this phenomenon. A number of ingenious and practical solutions were suggested in various writings, most of them modelled on the idea that severe human rights abuses should give rise to a right of secession as a remedy of last resort. See, e.g., LEE C. BUCHHEIT, SECESSION: THE LEGITIMACY OF SELF-DETERMINATION (1978); BENYAMIN NEUBERGER, NATIONAL SELF-DETERMINATION IN POSTCOLONIAL AFRICA (1986); Onyeonoros Kamanu, Secession and the Right of Self-Determination: An OAU Dilemma, 12 J. MOD. AFR. STUD. 355 (1974); M.G. Kaladharan Nayar, Self-determination Beyond the Colonial Context: Biafra in Retrospect, 10 TEX. INT'L L.J. 321 (1975); Robin C.A, White, Self-Determination: Time for a Reassessment?, 28 NETH. INT'L L. REV. 147 (1981).
24. Since about 1970, a number of international lawyers have argued that the United Nations was obliged to confront this phenomenon. A number of ingenious and practical solutions were suggested in various writings, most of them modelled on the idea that severe human rights abuses should give rise to a right of secession as a remedy of last resort. See, e.g., LEE C. BUCHHEIT, SECESSION: THE LEGITIMACY OF SELF-DETERMINATION (1978); BENYAMIN NEUBERGER, NATIONAL SELF-DETERMINATION IN POSTCOLONIAL AFRICA (1986); Onyeonoros Kamanu, Secession and the Right of Self-Determination: An OAU Dilemma, 12 J. MOD. AFR. STUD. 355 (1974); M.G. Kaladharan Nayar, Self-determination Beyond the Colonial Context: Biafra in Retrospect, 10 TEX. INT'L L.J. 321 (1975); Robin C.A, White, Self-Determination: Time for a Reassessment?, 28 NETH. INT'L L. REV. 147 (1981).
25. Since about 1970, a number of international lawyers have argued that the United Nations was obliged to confront this phenomenon. A number of ingenious and practical solutions were suggested in various writings, most of them modelled on the idea that severe human rights abuses should give rise to a right of secession as a remedy of last resort. See, e.g., LEE C. BUCHHEIT, SECESSION: THE LEGITIMACY OF SELF-DETERMINATION (1978); BENYAMIN NEUBERGER, NATIONAL SELF-DETERMINATION IN POSTCOLONIAL AFRICA (1986); Onyeonoros Kamanu, Secession and the Right of Self-Determination: An OAU Dilemma, 12 J. MOD. AFR. STUD. 355 (1974); M.G. Kaladharan Nayar, Self-determination Beyond the Colonial Context: Biafra in Retrospect, 10 TEX. INT'L L.J. 321 (1975); Robin C.A, White, Self-Determination: Time for a Reassessment?, 28 NETH. INT'L L. REV. 147 (1981).
26. Since about 1970, a number of international lawyers have argued that the United Nations was obliged to confront this phenomenon. A number of ingenious and practical solutions were suggested in various writings, most of them modelled on the idea that severe human rights abuses should give rise to a right of secession as a remedy of last resort. See, e.g., LEE C. BUCHHEIT, SECESSION: THE LEGITIMACY OF SELF-DETERMINATION (1978); BENYAMIN NEUBERGER, NATIONAL SELF-DETERMINATION IN POSTCOLONIAL AFRICA (1986); Onyeonoros Kamanu, Secession and the Right of Self-Determination: An OAU Dilemma, 12 J. MOD. AFR. STUD. 355 (1974); M.G. Kaladharan Nayar, Self-determination Beyond the Colonial Context: Biafra in Retrospect, 10 TEX. INT'L L.J. 321 (1975); Robin C.A, White, Self-Determination: Time for a Reassessment?, 28 NETH. INT'L L. REV. 147 (1981).
27. Since about 1970, a number of international lawyers have argued that the United Nations was obliged to confront this phenomenon. A number of ingenious and practical solutions were suggested in various writings, most of them modelled on the idea that severe human rights abuses should give rise to a right of secession as a remedy of last resort. See, e.g., LEE C. BUCHHEIT, SECESSION: THE LEGITIMACY OF SELF-DETERMINATION (1978); BENYAMIN NEUBERGER, NATIONAL SELF-DETERMINATION IN POSTCOLONIAL AFRICA (1986); Onyeonoros Kamanu, Secession and the Right of Self-Determination: An OAU Dilemma, 12 J. MOD. AFR. STUD. 355 (1974); M.G. Kaladharan Nayar, Self-determination Beyond the Colonial Context: Biafra in Retrospect, 10 TEX. INT'L L.J. 321 (1975); Robin C.A, White, Self-Determination: Time for a Reassessment?, 28 NETH. INT'L L. REV. 147 (1981).
28. As long ago as 1920, Robert Lansing, Woodrow Wilson's Secretary of State, predicted that the principle of self-determination, if applied in Europe under the Fourteen Points, would precipitate a descent into regional anarchy. See Robert Lansing, Self-Determination, SATURDAY EVENING POST, Apr. 9, 1921, at 7. See also HARLEY NOTTER, THE ORIGINS OF THE FOREIGN POLICY OF WOODROW WILSON (1937); Martti Koskenniemi, National Self-Determination Today: Problems of Legal Theory and Practice, 43 INT'L & COMP. L. Q. 241 (1994) (focusing on Yugoslavia).
29. As long ago as 1920, Robert Lansing, Woodrow Wilson's Secretary of State, predicted that the principle of self-determination, if applied in Europe under the Fourteen Points, would precipitate a descent into regional anarchy. See Robert Lansing, Self-Determination, SATURDAY EVENING POST, Apr. 9, 1921, at 7. See also HARLEY NOTTER, THE ORIGINS OF THE FOREIGN POLICY OF WOODROW WILSON (1937); Martti Koskenniemi, National Self-Determination Today: Problems of Legal Theory and Practice, 43 INT'L & COMP. L. Q. 241 (1994) (focusing on Yugoslavia).
30. As long ago as 1920, Robert Lansing, Woodrow Wilson's Secretary of State, predicted that the principle of self-determination, if applied in Europe under the Fourteen Points, would precipitate a descent into regional anarchy. See Robert Lansing, Self-Determination, SATURDAY EVENING POST, Apr. 9, 1921, at 7. See also HARLEY NOTTER, THE ORIGINS OF THE FOREIGN POLICY OF WOODROW WILSON (1937); Martti Koskenniemi, National Self-Determination Today: Problems of Legal Theory and Practice, 43 INT'L & COMP. L. Q. 241 (1994) (focusing on Yugoslavia).
31. See, e.g., DAVID M. CAMERON, NATIONALISM, SELF-DETERMINATION AND THE QUEBEC QUESTION (1974); NUEBERGER, supra note 13. This issue will be discussed in greater detail below.
32. See, e.g., the ill-fated Meech Lake and Charlottetown Accords in Canada (PETER W. HOGG, MEECH LAKE CONSITUTIONAL ACCORD ANNOTATED (1988) [hereinafter Meech Lake Accord]; Meech Lake Documents, 37 McGILL L.J. 144 (1992); Errol P. Mendes, The Charlottetown Accord: Sinking into the Quagmire of Conflicting Visions, Groups, Underinclusion and Death by Referendum, 2 NAT'L J. CONST. L. 379 (1993)); the Mabo decision and establishment of a Native Title Tribunal in Australia (Mabo v Queensland, 175 C.L.R. 1 (1992); Richard H. Bartlett, Political and Legislative Responses to Mabo, 23 W. AUSTL. L. REV. 353 (1993)); and in the United States, a series of judicial decisions beginning with Cherokee Nation v. Georgia, 30 U.S. 1 (1831) (creating domestic dependent sovereign nation status for Indian nations); Constitutión Española [Constitution] arts. 2, 3, 4, 143-158 (Spain).
33. See, e.g., the ill-fated Meech Lake and Charlottetown Accords in Canada (PETER W. HOGG, MEECH LAKE CONSITUTIONAL ACCORD ANNOTATED (1988) [hereinafter Meech Lake Accord]; Meech Lake Documents, 37 McGILL L.J. 144 (1992); Errol P. Mendes, The Charlottetown Accord: Sinking into the Quagmire of Conflicting Visions, Groups, Underinclusion and Death by Referendum, 2 NAT'L J. CONST. L. 379 (1993)); the Mabo decision and establishment of a Native Title Tribunal in Australia (Mabo v Queensland, 175 C.L.R. 1 (1992); Richard H. Bartlett, Political and Legislative Responses to Mabo, 23 W. AUSTL. L. REV. 353 (1993)); and in the United States, a series of judicial decisions beginning with Cherokee Nation v. Georgia, 30 U.S. 1 (1831) (creating domestic dependent sovereign nation status for Indian nations); Constitutión Española [Constitution] arts. 2, 3, 4, 143-158 (Spain).
34. See, e.g., the ill-fated Meech Lake and Charlottetown Accords in Canada (PETER W. HOGG, MEECH LAKE CONSITUTIONAL ACCORD ANNOTATED (1988) [hereinafter Meech Lake Accord]; Meech Lake Documents, 37 McGILL L.J. 144 (1992); Errol P. Mendes, The Charlottetown Accord: Sinking into the Quagmire of Conflicting Visions, Groups, Underinclusion and Death by Referendum, 2 NAT'L J. CONST. L. 379 (1993)); the Mabo decision and establishment of a Native Title Tribunal in Australia (Mabo v Queensland, 175 C.L.R. 1 (1992); Richard H. Bartlett, Political and Legislative Responses to Mabo, 23 W. AUSTL. L. REV. 353 (1993)); and in the United States, a series of judicial decisions beginning with Cherokee Nation v. Georgia, 30 U.S. 1 (1831) (creating domestic dependent sovereign nation status for Indian nations); Constitutión Española [Constitution] arts. 2, 3, 4, 143-158 (Spain).
35. See, e.g., the ill-fated Meech Lake and Charlottetown Accords in Canada (PETER W. HOGG, MEECH LAKE CONSITUTIONAL ACCORD ANNOTATED (1988) [hereinafter Meech Lake Accord]; Meech Lake Documents, 37 McGILL L.J. 144 (1992); Errol P. Mendes, The Charlottetown Accord: Sinking into the Quagmire of Conflicting Visions, Groups, Underinclusion and Death by Referendum, 2 NAT'L J. CONST. L. 379 (1993)); the Mabo decision and establishment of a Native Title Tribunal in Australia (Mabo v Queensland, 175 C.L.R. 1 (1992); Richard H. Bartlett, Political and Legislative Responses to Mabo, 23 W. AUSTL. L. REV. 353 (1993)); and in the United States, a series of judicial decisions beginning with Cherokee Nation v. Georgia, 30 U.S. 1 (1831) (creating domestic dependent sovereign nation status for Indian nations); Constitutión Española [Constitution] arts. 2, 3, 4, 143-158 (Spain).
36. I take it as given that self-determination is also a right held by States. However, this observation is not helpful in the present discussion for at least two reasons. First, States are adequately protected from external threats to their "self-determination" by a series of norms of international law (e.g., the prohibition on the use of force, and the principle of non-intervention and the associated rights to territorial integrity and domestic jurisdiction). Second, it becomes an excuse for States who claim that the principle is exhausted by the State's own enjoyment of it. However, this is not to suggest that self-determination is a principle that should be abandoned on the basis of indeterminacy or incoherence. First, it is the only right with any real prestige or legitimacy in international law that might be usefully employed to protect group rights. The minority rights outlined in Article 27 of the International Covenant on Civil and Political Rights, Dec. 16, 1966, U.N. GAOR 2200A (XXI), 999 U.N.T.S. 171 [hereinafter ICCPR], for example, are rights belonging to individuals alone. Second, it has been a widely respected and dynamic principle associated with the cause of liberation from colonial domination.
37. This list contains only some of the better known groups. A complete list of groups and peoples claiming self-determination would also include the Karen peoples in Burma, the Ambonese and Aceh Merdeka in Indonesia, the Chittagong Hill Tribes in Bangladesh, the South Ossetians in Georgia, the Tamils in Sri Lanka, the Naga people in India, the Catholic Irish in the United Kingdom, and the Western Saharans under de facto control by the Moroccans. The Unrepresented Nations and Peoples Organization based in the Hague publishes an ever expanding list of members that currently stands at 26. All of these groups claim some manner of self-determination; together they represent more than 50 million persons. See Unrepresented Nations and Peoples Organization ("UNPO"), Self-Determination in Relation to Individual Human Rights, Democracy and the Protection of the Environment, UNPO GA/1993/CR/1 (Conference Report 1993) [hereinafter "UNPO Report"].
38. For example, the United Nations and other assorted multilateral agencies granted the PLO and ANC quasi-official status. Consider as well the semi-official recognition the above agencies give to non-state representatives such as the Dalai Lama and José Ramos Horta, representatives of Tibet and East Timor, respectively.
39. See, for example, the cases of St. Helena, Pitcairn, American Samoa, Anguilla, East Timor, Gibraltar, the Falkland Islands and Hong Kong.
40. The work of the Decolonization Committee is now coming to an end. See S.C. Res. 956, U.N. SCOR, 49th sess., 3455th mtg., U.N. Doc. S/RES/956 (1994) (terminating the trust over Palau, "[s]atisfied that the people of Palau have freely exercised their right to self-determination in approving the new status agreement in a plebiscite").
41. This evolution is reflected in the recent claims to self-determination made by elements of the white minority in South Africa seeking to establish a white homeland (volkstaat) and similar claims made by the Bosnian Serbs. See John Sharp, Introduction: Constructing Social Reality, in SOUTH AFRICAN KEYWORDS: THE USES AND ABUSES OF POLITICAL CONCEPTS (Emile Boonzaier et al. eds., 1988).
42. Even organizations as unsavoury as RENAMO, an insurgency movement in Mozambique renowned for its brutality, the Contras in Nicaragua, and the Khmer Rouge in Cambodia couch their claims in the language of self-determination. These unfortunate uses of the principle underscore the need to renew the link between self-determination and human rights law without entirely collapsing one into the other. See, e.g., William Gehrke, The Mozambique Crisis: A Case for United Nations Intervention, 24 CORNELL INT'L L.J. 135, 141 (1991).
43. Increasingly frequent use of the term has reduced this principle to the level of a rhetorical device or a political slogan. Over twenty years ago, Vernon Van Dyke elegantly identified this phenomenon, remarking that "self-determination has become an emotion-laden term in the field of human rights, a shibboleth that all must pronounce to identify themselves with the virtuous." VERNON VAN DYKE, HUMAN RIGHTS, THE UNITED STATES AND WORLD COMMUNITY 77 (1970). In a recent work, Thomas M. Franck explains how a principle's lack of clarity can diminish its impact: "Obviously, rules with a readily ascertainable meaning have a better chance than those that do not to regulate conduct of those to whom the rule is addressed or exert a compliance pull on their policy-making process." Thomas M. Franck, Legitimacy in the International System, 82 AM. J. INT'L L. 705, 713 (1988). Self-determination suffers the consequences of its own ambiguity: a lack of legitimacy. The institutions which might have lent clarity and thus legitimacy to this concept have developed either obtuse and contradictory norms (e.g., the General Assembly), statist principles (e.g., the Security Council, until recently), or staid expressions of colonial definitions (e.g., the International Court of Justice). See Franck, supra at 725; see also W. OFUATEY-KODJOE, THE PRINCIPLE OF SELF-DETERMINATION IN INTERNATIONAL LAW (1977) (arguing that "it is certainly safe to assert that the removal of confusion and uncertainty from the definition tends to heighten considerably the expectation of a clear and unambiguous application of the principle").
44. Increasingly frequent use of the term has reduced this principle to the level of a rhetorical device or a political slogan. Over twenty years ago, Vernon Van Dyke elegantly identified this phenomenon, remarking that "self-determination has become an emotion-laden term in the field of human rights, a shibboleth that all must pronounce to identify themselves with the virtuous." VERNON VAN DYKE, HUMAN RIGHTS, THE UNITED STATES AND WORLD COMMUNITY 77 (1970). In a recent work, Thomas M. Franck explains how a principle's lack of clarity can diminish its impact: "Obviously, rules with a readily ascertainable meaning have a better chance than those that do not to regulate conduct of those to whom the rule is addressed or exert a compliance pull on their policy-making process." Thomas M. Franck, Legitimacy in the International System, 82 AM. J. INT'L L. 705, 713 (1988). Self-determination suffers the consequences of its own ambiguity: a lack of legitimacy. The institutions which might have lent clarity and thus legitimacy to this concept have developed either obtuse and contradictory norms (e.g., the General Assembly), statist principles (e.g., the Security Council, until recently), or staid expressions of colonial definitions (e.g., the International Court of Justice). See Franck, supra at 725; see also W. OFUATEY-KODJOE, THE PRINCIPLE OF SELF-DETERMINATION IN INTERNATIONAL LAW (1977) (arguing that "it is certainly safe to assert that the removal of confusion and uncertainty from the definition tends to heighten considerably the expectation of a clear and unambiguous application of the principle").
45. Increasingly frequent use of the term has reduced this principle to the level of a rhetorical device or a political slogan. Over twenty years ago, Vernon Van Dyke elegantly identified this phenomenon, remarking that "self-determination has become an emotion-laden term in the field of human rights, a shibboleth that all must pronounce to identify themselves with the virtuous." VERNON VAN DYKE, HUMAN RIGHTS, THE UNITED STATES AND WORLD COMMUNITY 77 (1970). In a recent work, Thomas M. Franck explains how a principle's lack of clarity can diminish its impact: "Obviously, rules with a readily ascertainable meaning have a better chance than those that do not to regulate conduct of those to whom the rule is addressed or exert a compliance pull on their policy-making process." Thomas M. Franck, Legitimacy in the International System, 82 AM. J. INT'L L. 705, 713 (1988). Self-determination suffers the consequences of its own ambiguity: a lack of legitimacy. The institutions which might have lent clarity and thus legitimacy to this concept have developed either obtuse and contradictory norms (e.g., the General Assembly), statist principles (e.g., the Security Council, until recently), or staid expressions of colonial definitions (e.g., the International Court of Justice). See Franck, supra at 725; see also W. OFUATEY-KODJOE, THE PRINCIPLE OF SELF-DETERMINATION IN INTERNATIONAL LAW (1977) (arguing that "it is certainly safe to assert that the removal of confusion and uncertainty from the definition tends to heighten considerably the expectation of a clear and unambiguous application of the principle").
46. Franck, supra note 24, at 746.
47. See Deborah Z. Cass, Rethinking Self-determination: A Critical Analysis of International Legal Theory, 18 SYRACUSE J. INT'L L. & COM. 21 (1992).
48. For a discussion of the tension between the individual consciousness and collective norms in the context of the rational state, see CHARLES TAYLOR, HEGEL AND MODERN SOCIETY 100-25 (1979). For a Jungian explanation of the importance of individuality and community to the development of the human psyche, see JOHN C. SMITH, THE NEUROTIC FOUNDATIONS OF SOCIAL ORDER: PSYCHOANALYTIC ROOTS OF PATRIARCHY 20 (1990).
49. For a discussion of the tension between the individual consciousness and collective norms in the context of the rational state, see CHARLES TAYLOR, HEGEL AND MODERN SOCIETY 100-25 (1979). For a Jungian explanation of the importance of individuality and community to the development of the human psyche, see JOHN C. SMITH, THE NEUROTIC FOUNDATIONS OF SOCIAL ORDER: PSYCHOANALYTIC ROOTS OF PATRIARCHY 20 (1990).
50. See, e.g., Nayar, supra note 13; Conor Cruise O'Brien, The Right to Secede, N. Y. TIMES, Dec. 30, 1971, at 25; KURT VONNEGUT, Biafra: A People Betrayed, in WAMPETERS, FOMA AND GRANFALLOONS (1974) (providing an account of the consequences of Biafra's failed struggle for self-determination).
51. See, e.g., Nayar, supra note 13; Conor Cruise O'Brien, The Right to Secede, N. Y. TIMES, Dec. 30, 1971, at 25; KURT VONNEGUT, Biafra: A People Betrayed, in WAMPETERS, FOMA AND GRANFALLOONS (1974) (providing an account of the consequences of Biafra's failed struggle for self-determination).
52. For an exploration of the cultural and symbolic underpinnings of nationalism, see Anthony A. Smith, The Supersession of Nationalism, 31 INT'L J. COMP. SOC. 1 (1990).
53. "'Self-determination' is merely the statement of a problem and not the solution of it." Arnold J. Toynbee, Self-Determination, 484 Q. REV. 317, 317-38 (1925).
54. For example, East Timor and Indonesia, Scotland and the United Kingdom, Palestine and Israel, Nigeria and Biafra.
55. See also the doctrine of lebensraum (or space for the German people). The Nazis claimed that both the anschluss with Austria and the annexation of the Sudetenland from Czechoslovakia were exercises of self-determination for the German people.
56. See BENEDICT ANDERSON, IMAGINED COMMUNITIES 11 (1991).
57. Of course, the term "self-determination" did not appear in the political rhetoric of this period. The phrase "right to self-determination" receives its first specific treatment in a resolution of the London International Socialist Congress in 1896. UMOZURKE OJI UMOZURIKE, SELF-DETERMINATION IN INTERNATIONAL LAW 3 (1972).
58. Id. at 9-11.
59. This stage began with the American Declaration of Independence and reached its peak during the decolonization period of the 1960s and 1970s.
60. See a statement by then U.N. Secretary-General U. Thant in 1970: "As far as the question of secession ... is concerned, the United Nations' attitude is unequivocable. As an international organization, the United Nations has never accepted and does not accept and I do not believe it will ever accept a principle of secession of a part of its Member State." Secretary-General's Press Conferences, 7 U.N. MONTHLY CHRON., Feb. 1970, at 36. But see the extensive literature on nationalism in recent years: ANDERSON, supra note 33; LIAH GREENFIELD), NATIONALISM: FIVE ROADS TO MODERNITY (1994); ANTHONY SMITH, THE ETHNIC ORIGINS OF NATIONS (1987).
61. See a statement by then U.N. Secretary-General U. Thant in 1970: "As far as the question of secession ... is concerned, the United Nations' attitude is unequivocable. As an international organization, the United Nations has never accepted and does not accept and I do not believe it will ever accept a principle of secession of a part of its Member State." Secretary-General's Press Conferences, 7 U.N. MONTHLY CHRON., Feb. 1970, at 36. But see the extensive literature on nationalism in recent years: ANDERSON, supra note 33; LIAH GREENFIELD), NATIONALISM: FIVE ROADS TO MODERNITY (1994); ANTHONY SMITH, THE ETHNIC ORIGINS OF NATIONS (1987).
62. See a statement by then U.N. Secretary-General U. Thant in 1970: "As far as the question of secession ... is concerned, the United Nations' attitude is unequivocable. As an international organization, the United Nations has never accepted and does not accept and I do not believe it will ever accept a principle of secession of a part of its Member State." Secretary-General's Press Conferences, 7 U.N. MONTHLY CHRON., Feb. 1970, at 36. But see the extensive literature on nationalism in recent years: ANDERSON, supra note 33; LIAH GREENFIELD), NATIONALISM: FIVE ROADS TO MODERNITY (1994); ANTHONY SMITH, THE ETHNIC ORIGINS OF NATIONS (1987).
63. There have been some isolated instances of voluntary or peaceful secessions, most notably Singapore's secession from Malaysia and Norway's from Sweden in the early Twentieth Century. The dismemberment of the former Yugoslavia and the Soviet Union are less clearly examples of secession.
64. See, for example, Bangladesh's secession from Pakistan in 1971 and Eritrea's secession from Ethiopia in 1993.
65. See LAURI HANNIKAINEN, PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW: HISTORICAL DEVELOPMENT, CRITERIA, PRESENT STATUS 357-425 (1988) (arguing that self-determination has acquired the status of jus cogen). Self-determination, however, possesses relatively weak normative force when compared to the principles with which it is most often in competition (e.g., the rights of states to territorial integrity or the duty of non-intervention). Since each of these possesses an undisputed core meaning, these "hard" supernorms of international law possess greater certainty and credibility than the more ambiguous principle of self-determination. Note also that the RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 102, 702 (1987) does not mention self-determination as a possible peremptory norm.
66. See LAURI HANNIKAINEN, PEREMPTORY NORMS (JUS COGENS) IN INTERNATIONAL LAW: HISTORICAL DEVELOPMENT, CRITERIA, PRESENT STATUS 357-425 (1988) (arguing that self-determination has acquired the status of jus cogen). Self-determination, however, possesses relatively weak normative force when compared to the principles with which it is most often in competition (e.g., the rights of states to territorial integrity or the duty of non-intervention). Since each of these possesses an undisputed core meaning, these "hard" supernorms of international law possess greater certainty and credibility than the more ambiguous principle of self-determination. Note also that the RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES §§ 102, 702 (1987) does not mention self-determination as a possible peremptory norm.
67. U.N. CHARTER art. 1, ¶ 2.
68. Declaration on the Principles of International Law Concerning Friendly Relations and Cooperation Among States, G.A. Res. 2625, U.N. GAOR, 25th Sess., 1883d mtg., Supp. No. 20, at 122, UN Doc. A/8028 (1970) [hereinafter "Declaration on Friendly Relations"].
69. "Colonial liberation created some fifty new states ... their formation reflecting the right of self-determination without any advance in the technique of applying the principle." ISTRÁN BIBO, THE PARALYSIS OF INTERNATIONAL INSTITUTIONS AND THE REMEDIES 31 (1976).
70. This is not to argue that such transformations should be free of restrictions. Restriction is, after all, the nature of law. The point here, however, is that it need not have been restricted to this extent.
71. See A. RIGO SUREDA, THE EVOLUTION OF THE RIGHT OF SELF-DETERMINATION: A STUDY OF UNITED NATIONS PRACTICE (1973).
72. See Emerson, supra note 5, at 459-75.
73. Pre-World War II self-determination was a parochial European concept not only reflecting the values of the Western nationalist tradition but also remaining European in its application. See also JAMES BARROS, THE AALAND ISLANDS QUESTION: ITS SETTLEMENT BY THE LEAGUE OF NATIONS (1968).
74. See generally POMERANCE, supra note 9.
75. Ironically, these same fears underpin the rejection of a right of secession by many of the states created as a result of this process of decolonization.
76. The U.S. Government continued to emphasize "the right of all peoples to choose the form of government under which they will live." Barbara Wells, United Nations Decisions on Self-Determination 54 (1963) (unpublished Ph.D. dissertation, New York University).
77. Douglas Williams, the British colonial attaché to Washington at the time, stated his position on the colonial question succinctly: "[m]ost of our territories, if the principle of self-determination were applied, would simply disintegrate as administrative units and fall apart on the basis of tribal divisions." Id. at 57.
78. Id. at 57-64. See also OFUATEY-KODJOE, supra note 24, at 104-05. The Soviet Union also played an important role in promoting self-determination at discussions during the drafting of the U.N. Charter. Soviet support for self-determination and decolonization, however, was essentially opportunistic and needs to be seen in the light of Marxist-Leninist ideology. The Soviets had strategic reasons for wishing to undermine Western European Empires. For the Soviets, national self-determination was an adjunct to revolutionary communism. They envisioned national self-determination as a transitional phase between the disintegration of Empire and the formation of the socialist state. Whereas the Soviets viewed national liberation and decolonization as means, the fledgling Afro-Asian nations considered them ends. See infra note 63 and accompanying text; see also David B. Levin The Principle of Self-Determination in International Law, 1962 SOVIET Y. B. INT'L L. 45, 45-48. At the height of the Cold War, Americans also began to exploit self-determination movements in Nicaragua, Angola and Afghanistan with little regard for human cost.
79. Articles 1 and 55 refer to the need for developing "friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples." U.N. CHARTER art. 1, ¶ 2, art 55. See POMERANCE, supra note 9.
80. Indeed, there is some doubt as to whether the principle even extends to groups other than states. See HANS KELSEN, THE LAW OF THE UNITED NATIONS 20-23 (1964). See also U.N. ESCOR, 8th Sess., 253d mtg., at 6, U.N. Doc. E/CN.4/SR.253 (1952) (hearings to the effect that the principle referred only to relations between sovereign states). Writers frequently and rather blithely refer to a "right" of self-determination in the U.N. Charter. See, e.g., Manfred Lachs, The Law in and of the United Nations: Some Refledions on the Principle of Self-determination, 1 INDIAN J. INT'L L. 429 (1961). Neither the wording of the U.N. Charter nor customary international law at the time supports such a contention.
81. Indeed, there is some doubt as to whether the principle even extends to groups other than states. See HANS KELSEN, THE LAW OF THE UNITED NATIONS 20-23 (1964). See also U.N. ESCOR, 8th Sess., 253d mtg., at 6, U.N. Doc. E/CN.4/SR.253 (1952) (hearings to the effect that the principle referred only to relations between sovereign states). Writers frequently and rather blithely refer to a "right" of self-determination in the U.N. Charter. See, e.g., Manfred Lachs, The Law in and of the United Nations: Some Refledions on the Principle of Self-determination, 1 INDIAN J. INT'L L. 429 (1961). Neither the wording of the U.N. Charter nor customary international law at the time supports such a contention.
82. See T. BATY, THE CANONS OF INTERNATIONAL LAW 119-26 (1930) (equating self-determination with independence of the state itself); 1 GREAT BRITAIN AND THE LAWS OF NATIONS 34-47, 67-76 (Herbert A. Smith ed., 1932); GREEN H. HACKWORTH, 1 DIG. OF INT'L L. 74-79 (1940); THOMAS JOSEPH LAWRENCE, THE PRINCIPLES OF INTERNATIONAL LAW 54-65 (Percy H. Winfield rev., 7th ed. 1923).
83. See T. BATY, THE CANONS OF INTERNATIONAL LAW 119-26 (1930) (equating self-determination with independence of the state itself); 1 GREAT BRITAIN AND THE LAWS OF NATIONS 34-47, 67-76 (Herbert A. Smith ed., 1932); GREEN H. HACKWORTH, 1 DIG. OF INT'L L. 74-79 (1940); THOMAS JOSEPH LAWRENCE, THE PRINCIPLES OF INTERNATIONAL LAW 54-65 (Percy H. Winfield rev., 7th ed. 1923).
84. See T. BATY, THE CANONS OF INTERNATIONAL LAW 119-26 (1930) (equating self-determination with independence of the state itself); 1 GREAT BRITAIN AND THE LAWS OF NATIONS 34-47, 67-76 (Herbert A. Smith ed., 1932); GREEN H. HACKWORTH, 1 DIG. OF INT'L L. 74-79 (1940); THOMAS JOSEPH LAWRENCE, THE PRINCIPLES OF INTERNATIONAL LAW 54-65 (Percy H. Winfield rev., 7th ed. 1923).
85. See T. BATY, THE CANONS OF INTERNATIONAL LAW 119-26 (1930) (equating self-determination with independence of the state itself); 1 GREAT BRITAIN AND THE LAWS OF NATIONS 34-47, 67-76 (Herbert A. Smith ed., 1932); GREEN H. HACKWORTH, 1 DIG. OF INT'L L. 74-79 (1940); THOMAS JOSEPH LAWRENCE, THE PRINCIPLES OF INTERNATIONAL LAW 54-65 (Percy H. Winfield rev., 7th ed. 1923).
86. U.N. CHARTER art. 73 (b).
87. This may result from economic self-interest or genuine concern for the chaotic consequences of premature independence.
88. U.N. CHARTER art. 76 (emphasis added). The charter also refers to the "freely expressed wishes of the peoples concerned," but this comes attached to the phrase "and as may be provided by the terms of the trusteeship agreement." Some writers have discerned here the genesis of a right to self-determination. See, e.g., DOV RONEN, THE QUEST FOR SELF-DETERMINATION 5 (1979).
89. See OFUATEY-KODJOE, supra note 24, at 131.
90. JOHN HATCH, A HISTORY OF POST-WAR AFRICA 37 (1965).
91. OFUATEY-KODJOE, supra note 24, at 100 (quoting Cordell Hull, the former secretary of state, who claims that the U.S. purpose was "to support the attainment of freedom for all peoples who, by their acts, show themselves worthy of it and ready for it."). Ironically, the United States occasionally obstructed the right of self-determination, even in pseudo-colonial situations. See, e.g., Walter G. Van Dorn, Jr., The Compact of Free Association: An End to the Trust Territory of the Pacific Islands, 5 B.U. INT'L L.J. 213 (1987).
92. See, e.g., KONST. SSSR pmbl. (1924) ("The will of the peoples of the Soviet Republics, unanimously proclaimed at their recent congresses of soviets in the decision to form the 'Union of Soviet Socialist Republics,' is a sure guarantee that this Union is a voluntary association of peoples with equal rights, that each republic is assured of the right of free secession from the Union ....") translated in ARYEH L. UNGER, CONSTITUTIONAL DEVELOPMENT IN THE USSR, A GUIDE TO THE SOVIET CONSTITUTIONS 60 (1981); KONST. SSSR art. 17 (1936) ("Every union republic shall retain the right of free secession from the USSR.") translated in UNGER, supra, at 143; KONST. SSSR art. 70 (stating in part that "[t]he Union of Soviet Socialist Republics shall be a single union multinational state formed on the basis of the principle of socialist federalism as a result of the free self-determination of nations and the voluntary association of equal Soviet socialist republics."), art. 72 ("Every union republic shall retain the right of free secession."), translated in UNGER, supra, at 246.
93. The Baltic Republics were denied external and internal self-determination - they were deprived both of their sovereignty and democratic choice. The countries of Eastern Europe lacked internal self-determination but clinged to a tenuous external sovereignty. They at least remained nation-states albeit often in a physically skewed form (e.g., Poland).
94. G.A. Res. 217, U.N. GAOR, 3rd Sess., 183d plen. mtg. at 71, U.N. Doc. A/810 (1948).
95. The British, Dutch, and Spanish moved most rapidly. The French (in Algeria) and the Portuguese (in Angola, Mozambique, and East Timor) became involved in nasty colonial conflicts.
96. G.A. Res. 421, U.N. GAOR, 5th Sess., Supp. No. 20, art 6, U.N. Doc. A/1775/Corr. 1 (1950).
97. G.A. Res. 545, U.N. GAOR, 5th Sess., Supp. No. 20, art 1, U.N. Doc. A/1775/Add. 1 (1952).
98. ICCPR, supra note, 17, art. 1; and the International Covenant on Economic, Social and Cultural Rights 1966, U.N. GAOR 2200A (XXI), 993 U.N.T.S. 3, art 1 [hereinafter ICESCR].
99. Article 1 (1) of both the ICCPR and the ICSECR read: "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."
100. See generally MARK J. BOSSUYT, GUIDE TO THE "TRAVAUX PREPARATOIRES" OF THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 20 (1982).
101. See Gross, supra note 5 (arguing that decolonization at this point was a matter of "political expedience" rather than legal approval).
102. If the U.N. Charter attempted to give political significance to what had been a moral principle by making self-determination a political aspiration of the United Nations, then the 1960 Declaration on the Granting of Independence attempted to give the political winds of change some legal basis.
103. Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res. 1514, U.N. GAOR, 15th Sess., Supp. No. 16, U.N. Doc. A/4684 (1960) [hereinafter "Declaration on the Granting of Independence"]. The contrast with Articles 73 and 76 of the UN Charter is remarkable. For example, trusteeship and colonial administrative authority are stigmatized as great evils in the Declaration, whereas in the U.N. Charter they were thought of as forms of benevolent authority
104. Id.
105. Id. at Princ. 3.
106. Id.
107. Id. at Princ. 5.
108. Id. at Princ. 6.
109. See CAMERON, supra note 15, at 99.
110. The Resolution lists "[p]rinciples which should guide Members in determining whether or not an obligation exists to transmit the information called for under Article 73(e) of the Charter." G.A. Res. 1541, U.N. GAOR, 15th Sess., Supp. No. 16, at 29, U.N. Doc. A/4684 (1960).
111. Declaration on Friendly Relations, supra note 42. (The alternatives offered in Principle VI are: (a) emergence as a sovereign independent state; (b) free association with an independent state; (c) integration with an independent state. Note, however, that the threshold of participation in the latter two cases is much higher.)
112. See Antonio Cassese, Political Self-Determnatian-Old Concepts and New Developments, in UN LAW/FUNDAMENTAL RIGHTS 143 (Antonio Cassese ed., 1979) (noting that "[t]he Declaration suffers from the same defects of ambiguity and vagueness that marred the Covenants.").
113. See GAETANO ARANGIO-RUIZ, THE UNITED NATIONS DECLARATION ON FRIENDLY RELATIONS AND THE SYSTEM OF THE SOURCES OF INTERNATIONAL LAW 131 (1979).
114. The resolution represents seven years of work in committee and on the floor of the General Assembly. Ian Brownlie claims that this declaration contributes a normative character to the Declaration. See IAN BROWNLIE, PRINCIPLES OF INTERNATIONAL LAW 597 (4th ed. 1990).
115. White, supra note 13, at 147.
116. Declaration on Friendly Relations, supra note 42, at 124.
117. See James F. Engers, From Sacred Trust to Self-determination, 24 NETH. INT'L L. REV. 85, 88 (1977).
118. See OFUATEY-KODJOE, sufra note 24, at 110-11.
119. Declaration on the Granting of Independence, supra note 73, at Princ. 1.
120. G.A. Res. 2131, U.N. GAOR, 20th. Sess., 1408th plen. mtg., Supp. No. 14, at 11, U.N. Doc. A/6014 (1965) (emphasis added). See also G.A. Res. 2160, U.N. GAOR, 21st Sess., 1482d plen. mtg., Supp. No. 16, at 4, U.N. Doc. A/6316 (1966) (calling for strict observance of the prohibition of the threat or use of force in international relations, stating that the right of peoples to self-determination forbids action designed to deprive "peoples under foreign domination of their right to self-determination," and requesting states to facilitate "the right of self-determination of peoples under colonial rule").
121. Declaration on Friendly Relations, supra note 42, at 124.
122. G.A. Res. 3314, U.N. GAOR, 29th Sess., 2319th plen. mtg., Supp. No. 31, at 143-44, U.N. Doc. A/9361 (1974). The Bandung Conference communiqué in 1955 affirmed that "colonialism in all its manifestations ... should especially be brought to an end," but noted in addition that "the exercise of the right of self-determination is the prerequisite of ... the eradication of racial discrimination." Final Communiqué of the Asian-African (Bandung) Conference, Apr. 24, 1955, reprinted in SELECTED AGREEMENTS AND TREATIES AFFECTING SOUTH-EAST ASIA 31 (South-East Asia Treaty Organization 1970). See also OFUATEY-KODJOE, supra note 24, at 141.
123. Western Sahara, 1975 I.C.J. 12, at 110 (October 16, 1975) (Advisory Opinion). (Judge Petren, in his opinion, states, "[i]nspired by a series of resolutions of the General Assembly, in particular resolution 1514 (XV), a veritable law of decolonization is in the course of taking shape. It derives essentially from the principle of self-determination.")
124. UMOZURIKE, supra note 34, at 190.
125. E.g., id. at 29 (describing colonies as "geographically separate and ... distinct ethnically and/or culturally from the country administrating it").
126. See ROSALYN HIGGINS, THE DEVELOPMENT OF INTERNATIONAL LAW THROUGH THE POLITICAL ORGANS OF THE UNITED NATIONS 104 (1963).
127. ALI MAZRUI, TOWARDS A PAX AFRICANA 14 (1967).
128. Cf. POMERANCE, supra note 9, at 73-76.
129. Id. at 44, 49-51.
130. NEUBERGER, supra note 13, at 85.
131. The United Nations did, however, condemn the Indonesian invasion of East Timor at this time. See S.C. Res. 384, U.N. SCOR, 30th Sess., 1869th mtg., U.N. Doc. S/INF/31 (1975).
132. See POMERANCE, supra, note 9, at 37-42. 103 See Michla Pomerance,
133. See U.N. GAOR 6th Comm., 24th Sess., 1158th mtg., at 284-285, U.N. Doc. A/C.6/SR.1158 (1969) (quoting M. Deleau, the French delegate to the U.N. Sixth Committee, who argued that colonial self-determination was basically an unequal application of a universal principle: All peoples were entitled to exercise the right to self-determination according to the Covenants, but only a small number of these peoples were permitted to do so).
134. It could be argued that the national and democratic types are really theories and practices of self-determination, while devolution and secession are models and practices. I have chosen to treat them as if they were conceptually similar.
135. See S.C. Res. 956, supra note 21. For a related view, see Jon Hinck, The Republic of Palau and the United States: Self-Determinatian Becomes the Price of Free Association, 78 CALIF. L. REV. 915 (1990) (discussing the past violations by the United States of the Paluans' right of self-determination).
136. For example, the classic colonial cases of Western Sahara and East Timor are now viewed in terms of reconciliation, compromise, and agreement. While the inhabitants of these territories would prefer to stigmatize their oppressors as "colonial," the right to self-determination has become decidedly qualified by the requirements to negotiate and compromise.
137. See Declaration on Principles of Interim Self-Government Arrangements, Sept. 13, 1993, Isr.-PLO, 32 I.L.M. 1525; Agreement on the Gaza Strip and the Jericho Area, May 4, 1994, Isr.-PLO, 33 I.L.M. 622.
138. See Thomas M. Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT'L L. 46, 59 (1992).
139. See generally ANDERSON, supra note 33.
140. This view is put forward by IGNATIEFF, supra note 4.
141. See Tony Judt, The New Old Nationalisms, N.Y. REV. BOOKS, May 26, 1994, at 44; see generally ERNEST GELLNER, NATIONS AND NATIONALISM (1983).
142. See Tony Judt, The New Old Nationalisms, N.Y. REV. BOOKS, May 26, 1994, at 44; see generally ERNEST GELLNER, NATIONS AND NATIONALISM (1983).
143. For a powerful defense of this view, see Guyora Binder, The Case for Self-Determination, 29 STAN. J. INT'L L. 223 (1993).
144. See also YAEL TAMIR, LIBERAL NATIONALISM (1993).
145. See, e.g., the Croatian antagonism towards the secession of Serbian Krajina, the Serbian hostility towards devolution for Albanian Kosovo, the Muslim Sandak region, and Hungarian Vojvodina, and the general antipathy shown by all national movements within the former Yugoslavia towards the multi-cultural forms of self-determination which once flourished in Sarajevo.
146. See ERIC HOBSBAWM, THE AGE OF EXTREMES 33 (1994) (noting that apart from rump Magyar Hungary and German Austria, each of the nation-states created at Versailles in 1919 was multi-ethnic in composition).
147. For a particularly poignant example of this, consider the events surrounding the Meech Lake Accord, where Quebec's insistence on a single national identity in Quebec, opposable to the Canadian national identity, provoked a number of competing assertions of self-determination within Quebec, from constituuonal agitations by the English-speaking minority to claims made by the indigenous minority, which contributed to the eventual disintegration of the agreement. Indeed, the Canadian experience would seem to indicate that sometimes the contradictions of self-determination cannot be resolved.
148. See Surya P. Sinha, Is Self-determination Passe?, 12 COLUM. J. TRANSNAT'L L. 260 (1973).
149. See Max Beloff, Self-Determination Reconsidered, 5 CONFLUENCE INT'L F. 195 (1956).
150. See S.C. Res. 948, U.N. SCOR, 49th sess., 3437th mtg., U.N. Doc. S/RES/948 (1994) (talking of "returning Haiti to the community of nations"); Conference on Security and Cooperation in Europe, Copenhagen Conference Dec., 29 I.L.M. 1305 (1990); see also Security Council support for democracy in Mozambique (S.C. Res. 957, U.N. SCOR, 49th sess., 3458th mtg., U.N. Doc. S/RES/957 (1994)) and Tajikstan (S.C. Res. 968, U.N. SCOR, 49th sess., 3482th mtg., U.N. Doc. S/RES/968 (1994)).
151. See Franck, supra note 109, at 47.
152. See FERNANDO R. TESON, The Kantian Theory of International Law, 92 COLUM. L. REV. 53, 60 (1992).
153. See U.N.P.O. Report, supra note 18, at 31.
154. The feminist critique works with equal force against other forms of self-determination. For example, in colonial self-determination, the creation or imagining of a national identity necessary to the success of a national liberation struggle is often an exercise in myth-making in which the claims of feminists within revolutionary movements will be regarded as trivial, diversionary, or decadent. Christine Chinkin remarks on the effects of another inevitable by-product of anti-colonial conflict: militarization. Within the military context, the link between men and power is made even more explicit. Women tend to be increasingly diverted into domestic or caring roles during periods of war, Chinkin also notes that women and children are now the major victims of armed struggle and refugee crises. Christine Chinkin, A Gendered Perspective to the Use of Force, 12 AUSTL. Y.B. OF INT'L L. 279 (1988).
155. See, e.g., Dianne Otto, Challenging the New World Order: International Law, Global Democracy and the Possibilities for Women, 3 TRANSNAT'L L. & CONTEMP. PROBS. 371 (1993) (arguing that feminists and democrats share at least the premise that current formulations of the right to self-determination are fatally flawed to the extent that substantial proportions of the population are often denied participation in policy implementation and state-building even after a successful exercise of external self-determination).
156. See, e.g., U.S. CONST. amend. X; MEECH LAKE ACCORD, supra note 16, art 30.
157. For a number of other approaches to devolution, see Asbjorn Eide, In Search of Constructive Alternatives to Secession, in MODERN LAW OF SELF-DETERMINATION 139 (Christian Tomuschat ed., 1993) (discussing consociational democracy and various schemes for minority protection).
158. See also the German Basic Law Article 30 and the Spanish approach to regional autonomy, discussed in HURST HANNUM, AUTONOMY, SOVEREIGNTY AND SELF-DETERMINATION 263 (1989).
159. See Treaty on European Union, Feb. 7, 1992, O.J. C 244/1 (1992), [1992] 1 C.M.L.R. 719, 31 I.L.M. 247, Article 3(b); see generally VERNON BOGDANOR, DEVOLUTION (1979).
160. For a discussion of self-determination and autonomy practices in the former Soviet Union, see Peter H. Juviler, Contested Ground: Rights to Self-Determination and the Experience of the Former Soviet Union, 3 TRANSNAT'L L. & CONTEMP. PROBS. 72 (1993).
161. Id. at 78-80.
162. See S.C. Res. 939, U.N. SCOR, 49th sess., 3412th mtg., U.N. Doc. S/RES/939 (1994) (emphasis added). The Council was also careful to exclude the possibility of secession.
163. S.C. Res. 971, U.N. SCOR, 50th sess., 3488th mtg., U.N. Doc. S/RES/971 (1995) (emphasis added).
164. See generally Hurst Hannum, Self-Determination, Yugoslavia and Europe: Old Wine in New Bottles, 3 TRANSNAT'L L. & CONTEMP. PROBS. 58 (1993).
165. S.C. Res. 820, U.N. SCOR, 48th sess., 3200th mtg., U.N. Doc. S/RES/820 (1993) (endorsing the Vance-Owen Plan, as contained in the Report of the Secretary General on the Activities of the International Conference on the Former Yugoslavia: Peace Talks on Bosnia and Herzegovina, U.N. SCOR, 48th sess., U.N. Doc. S/25479 (1993)); S.C. Res. 836, U.N. SCOR, 48th Sess., 3228th mtg., U.N. Doc S/RES/836 (1993).
166. There are arguably two distinct types of devolution: one based on territorial self-government, the other more personal or group-oriented.
167. Cf. Siegfried Wiessner, Federalism: An Architecture for Freedom, 1 NEW EUR. L. REV. 129 (1993) (suggesting the compatibility of self-determination and federalism and calling for greater international involvement in the enforcement of these structures).
168. Id. at 135-37. See also Robert Howse & Karen Knop, Federalism, Secession, and the Limits of Ethnic Accommodation: A Canadian Perspective, 1 NEW EUR. L. REV. 269, 272-74 (1993) (arguing for federalism as the process of reconstituting national expression into less exclusive forms).
169. U.N. CHARTER art. 2, ¶ 4.,
170. UMOZURKE, supra note 34, at 236.
171. Declaration on the Granting of Independence, supra note 73, at Princ. 7.
172. See, e.g., Ved P. Nanda, Self-Determination Under International Law: Validity of Claims to Secede, 13 CASE W. RES. J. INT'LL. 257 (1981).
173. Lee Buchheit calls this "remedial secession." BUCHHEIT, supra note 13, at 220.
174. See White, supra note 13, at 148.
175. See, for example, the reactions of Iraq and Turkey to the Kurds, of Indonesia to the Aceh Province, and of Nigeria to Biafra.
176. See S.C. Res. 688, U.N. SCOR, 46th sess., 2982nd mtg, U.N Doc S/RES/688 (1991). While the preamble spoke of reaffirming the territorial integrity of Iraq, the substance of the resolution "[d]emands that Iraq cooperate with the Secretary-General" in creatmg what was to become an autonomous zone in northern Iraq.
177. This interpretation is not accepted by all commentators. For support, see Marc Boutin, Somalia: The Legality of U.N. Forcible Humanitarian Intervention, 17 SUFFOLF TRANSNAT. INT'L L. REV. 138 (1994); and, more equivocally, Ruth Gordon, U.N. Intervention in Internal Conflicts: Iraq, Somalia, and Beyond, 15 MICH. J. INT'L L. 519 (1994); see also Koskenniemi, supra note 14, at 248.
178. This interpretation is not accepted by all commentators. For support, see Marc Boutin, Somalia: The Legality of U.N. Forcible Humanitarian Intervention, 17 SUFFOLF TRANSNAT. INT'L L. REV. 138 (1994); and, more equivocally, Ruth Gordon, U.N. Intervention in Internal Conflicts: Iraq, Somalia, and Beyond, 15 MICH. J. INT'L L. 519 (1994); see also Koskenniemi, supra note 14, at 248.
179. See supra note 37.
180. See Marc Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86 AM. J. INT'L L. 569 (1992).
181. For example, national versus democratic, expansion versus decomposition, conservative versus revolutionary, external versus internal, and statist versus secessionist.
182. See, e.g., Treaty of Final Settlement with Respect to Germany, 1990, 29 I.L.M. 1186.
183. Article 18 of the the Draft Code of Crimes Against the Peace and Security of Mankind, developed by the International Law Commission and awaiting approval from the United Nations' Sixth Committee, reads: "Any individual who as leader or organizer establishes or maintains by force or orders the establishment or maintenance by force of colonial domination contrary to the rights of peoples to self-determination as enshrined in the Charter of the United Nations shall, on conviction thereof, be sentenced [to ...]." Draft Code of Crimes Against the Peace and Security of Mankind, U.N. International Law Commission, 43rd sess., Supp. No. 10, U.N. Doc. A/46/10 (1991).
184. See Declaration of Principles of Interim Self-Government Arrangements, supra note 108.
185. U.N. Security Council Resolutions on Haiti (S.C. Res. 917, U.N. SCOR, 49th sess., 3376th mtg., U.N. Doc. S/RES/917 (1994)) and Somalia (S.C. Res. 897, U.N. SCOR, 49th sess., 3334th mtg., U.N. Doc. S/RES/897 (1994)).