Dealing with diversity in international law: Self-determination and statehood

Abstract

The contradiction between the principles of state sovereignty and national self-determination has been a constant theme in international law. Here we see several approaches to this theme. First, we engage with the underlying questions of self-determination in the context of state–minority relations. Second, we address the relationship between international law and minority rights. In particular, the essay reviews the changing nature of self-determination as we move away from the post-colonial period. Finally, we review the relationship between self-determination and state sovereignty. This relationship between the two principles is further complicated since self-determination both leads to and violates state sovereignty. The essay finds that often the role of international law is over-estimated in its consideration of legal enforcement. Specifically, the essay concludes that we must maintain a firm grasp on the international ‘politics’ of self-determination in order to truly understand the changing nature of the international system and its impact on minority rights.

Nazila Ghanea and Alexandra Xanthaki (eds.), Minorities, Peoples and Self-Determination (Leiden: Martinus Nijhoff Publishers 2005).

Paul Groarke, Dividing the State: Legitimacy, Secession and the Doctrine of Oppression (Aldershot: Ashgate 2004).

Karen Knop, Diversity and Self-Determination in International Law (Cambridge: Cambridge University Press 2002).

David Raič, Statehood and the Law of Self-Determination (The Hague: Kluwer Law International 2002).

Notes

Nazila Ghanea and Alexandra Xanthaki (eds.), Minorities, Peoples and Self-Determination (Leiden: Martinus Nijhoff Publishers 2005).

Paul Groarke, Dividing the State: Legitimacy, Secession and the Doctrine of Oppression (Aldershot: Ashgate 2004).

Karen Knop, Diversity and Self-Determination in International Law (Cambridge: Cambridge University Press 2002).

David Raič, Statehood and the Law of Self-Determination (The Hague: Kluwer Law International 2002).

1. M. Sheinin, ‘What are Indigenous Peoples?’, in Ghanea and Xanthaki (under review), p.13.

2. D. Wilson, Minority Rights in Education: Lessons for the European Union from Estonia, Latvia, Romania and the Former Yugoslav Republic of Macedonia (Stockholm: Swedish International Development Co-operation Agency 2000), p.10.

3. G. Alfredsson, ‘Minorities, Indigenous and Tribal Peoples, and Peoples: Definitions of Terms as a Matter of International Law’, in Ghanea and Xanthaki (under review), p.163.

4. M. Banton, ‘Colour as a Ground for Discrimination’, in Ghanea and Xanthaki (under review), p.245.

5. G. Gilbert, ‘Individuals. Collectivities and Rights’, in Ghanea and Xanthaki (under review).

6. R. Brubacker, Nationalism Reframed: Nationhood and the National Question in the New Europe (Cambridge: Cambridge University Press 1996). For an expansion of Brubacker's ‘triadic’ nexus, see D. J. Galbreath, Nation-Building and Minority Politics in Post-Socialist States: Interests, Influence and Identities in Estonia and Latvia (Stuttgart: ibidem Verlag 2005).

7. David D. Laitin, ‘The Game Theory of Language Regimes’, International Political Science Review, Vol.14, No.3 (1993), pp.227–39; David D. Laitin, ‘The Tower of Babel as a Coordination Game: Political Linguistics in Ghana’, American Political Science Review, Vol.88, No.3 (1994), pp.622–34; David D. Laitin, ‘National Revival and Competitive Assimilation in Estonia’, Post-Soviet Affairs, Vol.12, No.1 (1996), pp.25–39; Eduard Ponarin, ‘The Prospects of Assimilation of the Russophone Populations in Estonia and Ukraine: A Reaction to David Laitin's Research’, Europe-Asia Studies, Vol.52, No.8 (2000), pp.1535–41; and Aonghas St-Hilaire, ‘Ethnicity, Assimilation and Nation in Plural Suriname’, Ethnic and Racial Studies, Vol.24 No.6 (2001), pp.998–1019.

8. See in particular, the Hague Recommendations on the Education Rights of National Minorities (1996), Oslo Recommendations Regarding the Linguistic Rights of National Minorities, Lund Recommendations on the Effective Participation of National Minorities in Public Life (1999), http://www.osce.org/hcnm/documents/recommendations/.

9. See R. Letschert, ‘Towards a UN Representative on Minority Issues – Drawing upon the Experiences of the OSCE High Commissioner on National Minorities’, Helsinki Monitor, Vol.13, No.4 (2002), pp.326–37.

10. D. McGoldrick, ‘Multiculturalism and Its Discontents’, in Ghanea and Xanthaki (under review). On multiculturalism see J. Rawls, Political Liberalism (New York: Columbia University Press 1993); W. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press 1995); and B. Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Basingstoke: Macmillan 2000).

11. McGoldrick fails to actually illustrate a link between multiculturalism and illiberalism. For such a link see P. Hossay and A. Zolberg, ‘Democracy in Peril’, in M. Schain, A. Zolberg and P. Hossay (eds), Shadows over Europe: The Development and Impact of the Extreme Right in Western Europe (Basingstoke: Palgrave 2002).

12. N. Ghanea, ‘Repressing Minorities and Getting Away with It? A Consideration of Economic, Social and Cultural Rights’, in Ghanea and Xanthaki (under review), p.209.

13. Knop (under review), p.4.

14. Ibid. pp.4, 44.

15. See for example, R.A. Dahl, Democracy and its Critics (New Haven: Yale University Press 1989); Andreas Schedler, ‘What is Democratic Consolidation?’, Journal of Democracy (April 1998), pp.91–107; Terry Lynn Karl, ‘Dilemmas of Democratization in Latin America’, Comparative Politics, October (1990), pp.1–21; and J.J. Linz and Alfred Stepan, Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe (Baltimore: Johns Hopkins University Press 1996).

16. Furthermore, the nature of ‘participation’ as a key variable indicating the justifiability for self-determination allows richer democratic states to avoid the issue of economic or social grievances of minorities, while poorer developing states are at risk of collapse fostered by international law.

17. Knop (under review), p.4, emphasis added.

18. Ibid. p.5.

19. Ibid. p.3.

20. Ibid. p.4.

21. See Raič (under review), pp.226–307.

22. See the UN Charter Chapter XI, Article 73 and Chapter XII.

23. Ibid. p.228.

24. Knop (under review), pp.30–38.

25. Ibid. p.49.

26. Raič (under review), pp.206–10.

27. Ibid. p.167, emphasis added.

28. Ibid. p.394.

29. Groarke (under review).

30. Ibid. p.6. See Donald L. Horowitz, ‘Patterns of Ethnic Separatism’, Comparative Studies in Society and History, Vol.23 (1981), pp.165–95; D.L. Horowitz, Ethnic Groups in Conflict (Berkeley and London: University of California Press 1985); and Donald L. Horowitz, ‘Irrendentas and Secessions: Adjacent Phenomena, Neglected Connections’, International Journal of Comparative Sociology, Vol.13, No.1 (1992), pp.118–30.

31. Groarke (under review), pp.156–66.

32. See especially Richard Bellamy, ‘Dealing with Difference: Four Models of Pluralist Politics’, Parliamentary Affairs, Vol.53, No.1 (2000), pp.198–217.

33. For relative deprivation, see W.G. Runciman, Relative Deprivation and Social Justice (London: Routledge 1966).

34. Groarke (under review), p.159.

35. Dankwart Rustow, ‘Transition to Democracy: Toward a Dynamic Model’, Comparative Politics, Vol.2, No.3 (1970), pp.337–63; and Linz and Stepan (note 15) p.5.

36. The Narva and Sillamae City Councils located in the north-east chose to hold a referendum for autonomy within the Estonian Republic in 1993. The question asked was, ‘[D]o you want [area name, i.e. Narva] to have the status of territorial autonomous entity within the Estonian Republic?’ Autonomy in Idu-Virumaa would have represented a change from constitutional neutrality to a consociational approach. However, such an approach would have left out the large Russian-speaking minority community in Tallinn. The planning of the referendum did have one immediate effect. The Estonian government responded by revoking the promise of simplifying the naturalisation procedure. In Narva, 57.4% of eligible voters went to the polls and more than 97% supported the move for autonomy. In Sillamae, 61% of the eligible population participated and 98% chose autonomy. Aleksandr Maksimenko, Sillamae City Council Chairman, said ‘autonomy is the only peaceful means to bring laws that discriminate against the Russian-speaking population into conformity with democratic norms’. Rather than actually press for autonomy, the Narva City Council Chairman, Vladimer Chuikin, stated that the results of the referendum would give weight behind future talks. However, there is very little indication that the referendums did anything except harass the Mart Laar government and prolong revisions of the Law on Citizenship. See D.J. Smith, Estonia: Independence and European Integration (London: Routledge 2002).

37. Groarke (under review) p.149.

38. Ibid. p.166.