The right to be taken seriously: Self-determination in international law

Human Rights Quarterly

Volumn 28, Issue 1, 2006, Pages 186-206

  Klabbers, Jan ^a,b  

^a UNIVERSITY OF HELSINKI   (Finland)

^b Erik Castren Institute of International Law and Human Rights Helsinki   (Finland)

Author keywords

[No Author keywords available]

Indexed keywords

LEGISLATION; POLITICS; THEORETICAL STUDY;

EID: 33645147876     PISSN: 02750392     EISSN: None     Source Type: Journal    
DOI: 10.1353/hrq.2006.0007     Document Type: Article

References (117)

1. The story is well told in Thomas M. Franck, The Power of Legitimacy Among Nations (1990).
2. See Robert Lansing, The Peace Negotiations: A Personal Narrative 97 (1921) (quoting from a note that he had written in Paris, December 1918).
3. The ideological or philosophical roots are much older, of course, and are often traced back to the American and French revolutions. For a brief standard overview, see David Raič, Statehood and the Law of Self-Determination 172-77 (2002).
4. Whether that appeal has a strong philosophical grounding is a different question: Margalit and Raz decline to accept it as a basis for a right to self-determination. Instead, they explain self-determination in more instrumental terms: Self-determination is useful as it contributes to the prosperity of a group. See Avishai Margalit & Joseph Raz, National Self-Determination, in Ethics in the Public Domain: Essays in the Morality of Law and Politics 125 (Joseph Raz ed., 1995).
5. See Isaiah Berlin, Two Concepts of Liberty, in Four Essays on Liberty 157-58 (Isaiah Berlin ed., 1969).
6. The term democratic here refers not to a particular mode of government but rather to kinship with one's governors: A local dictator may be preferred over a foreign democrat.
7. Lansing put his distaste in no uncertain terms: "It is an evil thing to permit the principle of 'self-determination' to continue to have the apparent sanction of the nations when it has been in fact thoroughly discredited and will always be cast aside whenever it comes in conflict with national safety, with historic political rights, or with national economic interests affecting the prosperity of a nation." See Lansing, supra note 2, at 104.
8. See Antonio Cassese, Self-Determination of Peoples: A Legal Appraisal 5-6 (1995).
9. Berman states succinctly that claims of self-determination end up "bypassing sovereignty in the name of sovereignty." See Nathaniel Berman, Sovereignty in Abeyance: Self-Determination and International Law, 7 Wis. Int'l L.J. 51, 102 (1988).
10. See Martti Koskenniemi, National Self-Determination Today: Problems of Legal Theory and Practice, 43 Int'l & Comp. L.Q. 241, 249 (1994).
11. It is this discrepancy that inspired Skurbaty to denounce much of international law as a mala fide game. See Zelim Skurbaty, As If Peoples Mattered: A Critical Appraisal of "Peoples' and Minorities" from the International Human Rights Perspective and Beyond (2000).
12. And that is still premised on recognition of the group as a distinct group to whom the right to self-determination ought to apply. However, this, in itself, is rarely self-evident. As King Mutesa II of Baganda wrote: "I have never been able to pin down precisely the difference between a tribe and a nation and [to] see why one is thought to be despicable and the other is so admired.... [T]he Baganda have a common language, tradition, history and cast of mind.... Does this justify our being totally dominated by our neighbours, unnaturally yoked to us as they were to Britain?" Quoted in T.K. Oommen, New Nationalisms and Collective Rights: The Case of South Asia, in Ethnicity, Nationalism and Minority Rights 121, 127 (Stephen May et al. eds., 2004).
13. Koskenniemi is skeptical on this point: explaining decolonization in terms of a right to self-determination "may not have been necessary to achieve what had already been decreed by politics - namely the entry into statehood of some hundred former colonial territories." See Koskenniemi, supra note 9, at 241.
14. Waldron, in a very useful piece, suggests that the very pedestal on which one places substantive rights as resulting from one's critical faculties demands that one take participatory procedures seriously. See Jeremy Waldron, A Rights-Based Critique of Constitutional Rights, 13 Oxford J. Legal Stud. 18 (1993).
15. This was perhaps temporarily overshadowed by its association with decolonization. Thus, one commentator wrote in the early 1970s that "self-determination has come to mean emergence as an independent state by getting rid of colonial rule." See A. Rigo Sureda, The Evolution of the Right to Self-Determination: A Study of United Nations Practice 261 (1973).
16. For an illuminating discussion, see James J. Summers, The Idea of the People: The Right of Self-determination, Nationalism and the Legitimacy of International Law (2004) (unpublished Ph.D. dissertation, University of Helsinki) (on file with the author) (suggesting that by appealing to nationalism, self-determination helps legitimize international law).
17. Here, it is useful to point out that, typically, compromises are out of the question: One either has a right to self-determination or one does not. But it makes little sense to speak of a limited right to self-determination, at least not as long as self-determination encompasses secession. That said, it might be very useful to recognize that self-determination, like other human rights, might have to be subjected to limitations in order to be politically acceptable. For an argument to this effect, see Robert MacCorquodale, Self-Determination: A Human Rights Approach, 43 Int'l & Comp. L.Q. 857 (1994).
18. On the Åland Islands, see Koskenniemi, supra note 9.
19. This is quite apart from the circumstance that states have a systemic interest in statehood, which makes the international legal system rather less accommodating for non-state entities. On this, see Jan Klabbers, (I Can't Get No) Recognition: Subjects Doctrine and the Emergence of Non-State Actors, in Nordic Cosmopolitanism 351 (Jarna Petman & Jan Klabbers eds., 2003).
20. There is some evidence to suggest that communities are not so much the result of organic historical processes but rather of manipulation, neatly summed up in Massimo d'Azeglio's famous phrase, "We have made Italy, now we have to make Italians." Quoted in E.J. Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality 44 (2d. ed. 1992).
21. See generally Benedict Anderson, Imagined Communities (rev. ed. 1991).
22. But see Craig Calhoun, Is it Time to be Postnational?, in Ethnicity, Nationalism and Minority Rights, supra note 11, at 231 (suggesting that traditions can be invented - and communities imagined - precisely because they tap into some primordial feelings).
23. See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, 1971 I.C.J. 16 (21 June), ¶ 52 [hereinafter Namibia Opinion].
24. Id. ¶ 53. Note that the wording of the Court leaves unclear whether the Court meant to identify independence with self-determination or whether the two were considered as separate things.
25. The Mandate territories, after all, were generally former colonies.
26. See Namibia Opinion, supra note 20, at ¶ 69 (Ammoun, J., concurring).
27. Id. ¶ 74.
28. Id.
29. Id. ¶ 75.
30. A few pages later he remarked: "Annexation is nothing less than the negation of the new law of self-determination." Id. ¶ 91.
31. Ammoun's opinions have achieved a certain cult status in international law, in particular amongst critical international lawyers, and are analyzed at length in Berman, supra note 8, at 102;
32. Karen Knop, Diversity and Self-Determination in International Law (2002).
33. See Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (16 Oct.), ¶ 70.
34. Id. ¶ 72.
35. Id. ¶ 72.
36. Spain had made a number of arguments to this effect, all boiling down to getting the Court to dismiss the request. The main argument is found in id. ¶ 27.
37. Id. ¶ 160.
38. Id. ¶ 162.
39. See, e.g., Thomas M. Franck, Fairness in International Law and Institutions 196 (1995).
40. Western Sahara, supra note 27, ¶ 59.
41. Simpson, for example, pays heed to the idea of devolutive self-determination, resulting in autonomy. See Gerry J. Simpson, The Diffusion of Sovereignty: Self-Determination in the Postcolonial Age, 32 Stan. J. Int'l L. 255 (1996).
42. Western Sahara, supra note 27, ¶ 59.
43. Id.
44. Philosophically, it would be difficult to defend a version of strict self-determination that would even go against the wishes of the people concerned. For a brief but useful discussion of the problems involved in democratically abolishing democracy, see Waldron, supra note 13.
45. A right would, under most constructions, demand a human response; with a principle, the need for a specific human response is decidedly less clear. See, e.g., Andrew Halpin, Rights & Law: Analysis & Theory 107 (1997);
46. Ronald Dworkin, Taking Rights Seriously 22 (1978) (defining principle as "a standard to be observed... because it is a requirement of justice or fairness or some other dimension of morality").
47. Note also that Jack Donnelly, more generally, conceptualizes human rights not as legally enforceable but rather as entitlements on the political system. See Jack Donnelly, Universal Human Rights in Theory and Practice (1989).
48. See Frontier Dispute (Burkina Faso v. Mali), 1986 I.C.J. 554 (22 Dec.) [hereinafter Frontier Dispute].
49. See generally Jan Klabbers & René Lefeber, Africa: Lost Between Self-Determination and Uti Possidetis, in Peoples and Minorities in International Law 37 (Catherine Brölmann et al. eds., 1993). Uti possidetis was developed, internationally, in the context of decolonization and refers to the continued existence of boundaries. Colonial boundaries, no matter how arbitrary, would remain intact.
50. Frontier Dispute, supra note 41, ¶ 25.
51. Arguably, the Chamber needed to make the point in order to underline that uti possidetis had not come to Africa only after Mali and Burkina Faso had gained independence. This, at least, is what the Chamber itself seems to suggest. See id. 26. In turn, this can only mean that the Chamber thought the reference to a settlement "based in particular on respect for the principle of the intangibility of frontiers inherited from colonization" in the compromis was not decisive enough.
52. See East Timor (Portugal v. Australia), 1995 I.C.J. 90 (30 June) [hereinafter East Timor].
53. Id. ¶ 29. The controversial term "erga omnes obligations" signifies that some obligations are owed not just to one's treaty partners, but to the world community at large. This is most often mentioned in connection with human rights.
54. See Jan Klabbers, The Scope of International Law: Erga Omnes Obligations and the Turn to Morality, in Liber Amicorum Bengt Broms 149 (Matti Tupamäki ed., 1999) (arguing that the term erga omnes was used in a generic sense, without connotations to standing).
55. East Timor, supra note 45, ¶ 29.
56. The text of the opinion is helpfully reproduced in Self-Determination in International Law: Quebec and Lessons Learned 455, 495 (Anne Bayefsky ed., 2000).
57. Id. at 497.
58. For a lengthy and in-depth analysis, see Knop, supra note 26.
59. See Badinter Commission (No. 2), 92 I.L.R. 167 (1993).
60. Id. at 168-69.
61. General Comment No. 12, adopted 13 Apr. 1984, U.N., Hum. Rts. Comm., 21st Sess., U.N. Doc. HRI/GEN/1/Rev.1 (1994), ¶ 1.
62. The document is conveniently reproduced in Economic, Social and Cultural Rights: A Textbook annex 3, at 455 (Asbjorn Eide et al. eds., 1995).
63. Id. ¶ 4.The focus here seems to be largely domestic because, obviously, a state such as Germany cannot have any procedures in place to facilitate the self-determination of, say, the Western Saharans; and almost equally obviously, it concerns a narrow version, as one can hardly expect states to include a right to secession in their domestic legislation.
64. Indeed, for a sustained critique of a constitutional right to secession, see Cass Sunstein, Designing Democracy: What Constitutions Do 95-114 (2001).
65. Badinter Commission, supra note 52, at 168.
66. Some of the literature tends to the same direction. See, e.g., Allan Rosas, The Right of Self-Determination, in Economic, Social and Cultural Rights: A Textbook, supra note 54 (arguing that the right to self-determination should primarily be related to its internal aspect, thus demoting secession).
67. See David Kennedy, International Legal Structures (1987);
68. Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989).
69. The locus classicus is Alasdair MacIntyre, After Virtue: A Study in Moral Theory (2d ed. 1984).
70. This is not just a tenet of critical legal studies, but it also informs positivism and liberalism. A useful discussion is in David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar (1997) (suggesting that liberalism and positivism both eventually conclude that legal norms have no core meaning).
71. See, e.g., Martti Koskenniemi, Carl Schmitt, Hans Morgenthau, and the image of Law in International Relations, in The Role of Law in International Politics: Essays in International Relations and International Law 17 (Michael Byers ed., 2000) (warning against oppression in the name of values).
72. See Duncan Kennedy, A Critique of Adjudication: Fin de Siècle (1997).
73. Specifically addressing international human rights law is Martti Koskenniemi, The Effect of Rights on Political Culture, in The EU and Human Rights 99 (Philip Alston ed., 1999) (arguing that rights are intensely political).
74. Examples of a critical attitude towards rights thinking would include Costas Douzinas, The End of Human Rights (2000),
75. and the papers collected in Sceptical Essays on Human Rights (Tom Campbell et al. eds., 2001) (recognizing and exploring the political nature of rights).
76. For a critical analysis of the right to self-determination, exploring the emancipatory potential offered by its indeterminacy, see Knop, supra note 26.
77. See Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870-1960, at 500-09 (2001) (endorsing a "culture of formalism") [hereinafter Koskenniemi, Gentle Civilizer]. Both neo-republican thought and discourse theory start from the premise that, in a world of 6 billion people, political disagreement is inevitable. Instead of trying to overcome this by positing universal values, or by simply overpowering those who think differently, both approaches suggest that disagreement can best be overcome or accommodated by means of debate and discussion on a basis of equality and with sufficient guarantees concerning participation.
78. See Jan Klabbers, Constitutionalism Lite, 1 Int'l Org. L. Rev. 31 (2004) (endorsing a non-instrumental style of politics).
79. See Koskenniemi, Gentle Civilizer, supra note 65, at 502.
80. For a critique, see Martin Loughlin, Swords & Scales: An Examination of the Relationship Between Law & Politics (2000).
81. This made the same author later formulate a more or less republican (relational) theory of public law: See Martin Loughlin, The Idea of Public Law (2003).
82. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 Nov. 1950, 213 U.N.T.S. 221, Europ. T.S. No. 5, art. 2 (entered into force 3 Sept. 1953).
83. For a useful general discussion, see Claire Ovey & Robin White, European Convention on Human Rights 42-57 (3d ed. 2002) (pointing out, based on an analysis of the cases, just how procedural the Court's approach is).
84. Witness only the never-ending stream of studies devoted to reservations to human rights treaties. See, e.g., Liesbeth Lijnzaad, Reservations to UN-Human Rights Treaties: Ratify and Ruin? (1995);
85. Reservations to Human Rights Treaties and the Vienna Convention Regime: Conflict, Harmony or Reconciliation (Ineta Ziemele ed., 2004).
86. See Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, General Comment No. 15, U.N. ESCOR, Comm'n on Econ., Soc. & Cult. Rts., 29th Sess., Agenda Item 3, U.N. Doc. E/C.12/2002/11 (2003).
87. South Africa v. Grootboom 2001 (1) SA 46 (CC) (S. Afr.).
88. See, e.g., Sunstein, supra note 55, at 221-22: "The virtue of the Court's approach is that it is respectful of democratic prerogatives and of the limited nature of public resources, while also requiring special deliberative attention to those whose minimal needs are not being met."
89. The standard critique of socioeconomic rights holds that they are too vague to be judicially enforceable. An influential formulation of this position is E.W. Vierdag, The Legal Nature of the Rights Granted by the Covenant on Economic, Social and Cultural Rights, 9 Netherlands Y.B. of Int'l L. 69, 69-105 (1978).
90. See W. Ivor Jennings, The Law and the Constitution 260 (3d ed. 1943). For those with an interest in such matters, the sentence quoted was the closing sentence of Jennings' book, followed only by some appendices.
91. A similar approach runs through the work of Hannah Arendt, for whom "the right to have rights" was crucial. See Hannah Arendt, The Origins of Totalitarianism 279-97 (3d ed. 1966).
92. For a useful discussion, see Jeremy Waldron, Arendt's Constitutional Politics, in The Cambridge Companion to Hannah Arendt 201 (Dana Villa ed., 2000).
93. An attempt to apply Arendtian thought to human rights law is Jan Klabbers, Glorified Esperanto? Rethinking Human Rights, 13 Finnish Y.B. or Int'l L. 63 (2002).
94. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980).
95. See id.
96. See Mark Tushnet, Darkness on the Edge of Town: The Contributions of John Hart Ely to Constitutional Theory, 89 Yale L.J. 1037, 1046 (1980).
97. See Paul Brest, The Substance of Process, 42 Ohio St. L.J. 131 (1981).
98. See Raoul Berger, Ely's "Theory of Judicial Review," 42 Ohio St. L.J. 87 (1981).
99. See, e.g., Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 Yale L.J. 1063 (1980).
100. Id. at 1067.
101. See on this point the insightful book review by Gerard E. Lynch, Democracy and Distrust: A Theory of Judicial Review, 80 Colum. L. Rev. 857 (1980).
102. Thus, procedural fairness is endorsed in T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (2001), and Hirschl seems to share with Ely a preference for not letting lawyers decide on the great political debates.
103. See Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism 186-89 (2004).
104. The political theorist Iris Young comes close to the position defended here, albeit via a different route. See Iris Marion Young, Inclusion and Democracy 236-75 (2000);
105. see also Iris Marion Young, Two Concepts of Self-determination, in Ethnicity, Nationalism and Minority Rights, supra note 11, 176 (arguing in favor of a relational concept of self-determination).
106. See Margalit & Raz, supra note 4.
107. See generally Jeremy Waldron, Law and Disagreement (1999) (suggesting that political questions can best be answered in by means of political processes).
108. Barber sketches the value of debate evocatively: "Politics is what men do when metaphysics fails; it is not metaphysics reified as a constitution." See Benjamin R. Barber, The Conquest of Politics: Liberal Philosophy in Democratic Times 209 (1988).
109. See Arendt, supra note 77.
110. Sellers puts it as follows when addressing a substantive right to self-determination possibly including secession: "If every self-defined group in a society constitutes a 'people' with a separate right to self-determination, then 'self-determination' becomes an incoherent and ultimately unrealizable ambition." See Mortimer Sellers, Republican Principles in International Law, 11 Conn. J. Int'l L. 403, 423 (1996).
111. See, e.g., Bonnie Honig, Democracy and the Foreigner (2001) (highlighting how foreigners contribute to democracy).
112. On the violence often accompanying claims of self-determination (and the logic behind the violence), see Michael Ignatieff, Blood and Belonging (1994).
113. See generally Timo Makkonen, Identity, Difference and Otherness: The Concepts of "People," "Indigenous People" and "Minority" in International Law (2000) (discussing the exclusionary effects of self-determination discourse).
114. While I have obvious sympathies for republican or neo-republican political thought, I would on this point not go so far as those who argue that republics need not subordinate to the International Court of Justice as presently organized. An example is Sellers, supra note 92, at 431 (noting that ICJ's independence is not fully secured). I would however question the wisdom of submitting certain disputes to any court for a judicial decision.
115. Probably the most sophisticated and sustained analysis of internal self-determination and its consequences to date is Raič, supra note 3.
116. That is, on the level of detail. It is possible, though perhaps not very helpful, to discuss internal self-determination in more general terms. An example is Cassese, supra note 8, 101-40.
117. There is, of course, a connection, in that recognition of group rights and status amounts to recognition of the individuality of the group's members precisely by recognizing their right to be a group. For a discussion along these lines, see Charles Taylor, The Politics of Recognition, in Multiculturalism: Examining the Politics of Recognition 25 (Amy Gutmann ed., 1994).