The self-determination trap

Abstract

This article deconstructs the classical doctrine of self-determination, asserting that it serves to disenfranchise populations, instead of enfranchising them. Accordingly, self-determination discourse is not likely to satisfy those struggling for sovereign statehood, resulting instead in prolonged and bloody internal armed conflicts. The article then considers new state practice that accepts the application of self-determination in the sense of secession outside of the colonial context, but only under the very narrow criteria of the new doctrine of constitutional self-determination. Finally, the article asks whether a new generation of self-determination settlements is pointing a way out of the deadlock that is generated through the application of classical self-determination rules.

Acknowledgements

The author gratefully acknowledges research assistance by Martina Bielawski and proofreading by Heu Yee Leung.

Notes

1. Western Sahara, 1975 ICJ 12, p. 122.

2. This hitherto settled view is at present being challenged by indigenous peoples' representatives involved in a UN-sponsored attempt to generate a further international instrument on this issue.

3. In the UN framework there exists a technical identification of ‘non-self-governing territories’. However, this definition is not particularly useful in new contexts.

4. Burkina Faso/Mali Frontier Dispute, Merits, 1986 ICJ 564.

5. An exception to this rule would relate to a self-determination entity that decides to associate, but not integrate, with another state, instead of opting for independence. Through association the self-determination status of the entity is retained or, one might say, it is transformed into a case of constitutional self-determination. However, there is very little practice of this kind.

6. International Covenant on Civil and Political Rights, Third periodic reports of States parties due in 1991, Addendum, Report Submitted by Sri Lanka, 18 July 1994, CCPR/C/70/Add.6, 27 September 1994.

7. Author's translation.

8. In the Philippines autonomy settlement (Final Peace Agreement between the Government of the Republic of the Philippines and the Moro National Liberation Front of June 1996, available online at www.ecmi.de), the autonomous unit is also constituted through a plebiscite, although no external self-determination is provided for.

9. Article 73(2) assigned to the USSR jurisdiction in relation to the determination of the state boundaries of the USSR and also approval of changes in the boundaries between Union Republics.

10. Latvia and Estonia had adopted declarations concerning full independence in May and August 1990, respectively.

11. Constitution of the Socialist Federal Republic of Yugoslavia, Basic Principles, Section I.

12. European Political Cooperation (EPC) Statement on Yugoslavia, 27 August 1991.

13. The open-ended assignment of external self-determination status in the cases of Liechtenstein and Ethiopia appear extraordinary at present.

14. See for instance the Annan Plan on the Comprehensive Settlement of the Cyprus Problem of 31 March 2004.

15. Alma Ata Declaration of 21 December 2001, 31 ILM (1992) 177.