The Right to be Taken Seriously: Self-Determination in International

Law
Klabbers, Jan.

Human Rights Quarterly, Volume 28, Number 1, February 2006,

pp. 186-206 (Article)

Published by The Johns Hopkins University Press

DOI: 10.1353/hrq.2006.0007

For additional information about this article

http://muse.jhu.edu/journals/hrq/summary/v028/28.1klabbers.html

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HUMAN RIGHTS QUARTERLY

The Right to be Taken Seriously:

Self-Determination in International Law

Jan Klabbers*

ABSTRACT
This article suggests that viewing the right to self-determination as an
enforceable right possibly leading up to secession is no longer tenable, if it
ever was. Instead, courts and quasi-judicial tribunals have reconceptualized
self-determination as a legal principle rather than a right and have severed
the connection with secession. Hence, this article argues that self-
determination has been turned into a procedural norm; and this
reconceptualization can be defended in terms of republican political
theory.

I. INTRODUCTION

The right to self-determination easily qualifies as one of the more controver-

sial norms of international law. No matter how enthusiastic Woodrow
Wilson may have been about the prospect of drawing a post-war map for
the Europe of the 1920s based on the self-determination of peoples (and he

* Jan Klabbers is Professor of International Organizations Law at the University of Helsinki and
deputy director of the Erik Castrén Institute of International Law and Human Rights. He holds
basic degrees in international law and political science from the University of Amsterdam
(1988) and a doctorate in law, also from the University of Amsterdam (1996, with
distinction). He has taught international law, human rights law, and EU law in Helsinki since
1996; before that, he taught at the University of Amsterdam. His main publications include
The Concept of Treaty in International Law (1996) and An Introduction to International
Institutional Law (2002).
Earlier versions of this article were presented at a conference on “Self-determination in
Transition,” co-organized by the Islamic University of Yogjakarta and Erasmus University
Rotterdam, and to an audience at the University of Lund. The author is particularly indebted
to Kristin Henrard for her forceful critique.

Human Rights Quarterly 28 (2006) 186–206 © 2006 by The Johns Hopkins University Press
2006 Self-Determination in International Law 187

was very enthusiastic),1 Wilson’s own secretary of state at the time already
provided a counterweight and famously warned that self-determination was
“simply loaded with dynamite.”2 If Wilson’s Fourteen Points marked the
birth of a new doctrine in international law,3 then Lansing’s critique already
ensured that the delivery was not without complications.
Neither the advantages nor the disadvantages of self-determination are
difficult to trace. Its main attraction is, no doubt, that it appeals to our senses
of democracy and subsidiarity: government by and for the people.4 Isaiah
Berlin once put it starkly but rather accurately: people would rather be ruled
by a dictator from their midst than “by some cautious, just, gentle, well-
meaning administrator from outside.”5 And this finds its source, so Berlin
suggested, in our desire to be recognized as free and, somehow, authentic
humans. Being governed from the outside would imply being less than fully
free and, therewith, being less than fully human.
If this democratic6 appeal is the main attraction of the right to self-
determination, its main problem is also well recognized: It tends to
stimulate instability and disorder. Self-determination, while a beacon of
hope to oppressed people, becomes subversive when regarded from other
perspectives, eventually favoring a breakup of states over other modes of
settlement and coexistence.7 The two sides are intimately connected, so
much so that Cassese could diagnose, a few years ago, a built-in ambiva-
lence, positing the following “simple” dynamic:
[S]elf-determination is attractive so long as it has not been attained; alterna-
tively, it is attractive so long as it is applied to others. Once realized, enthusiasm

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
RAIC=, 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.
188 HUMAN RIGHTS QUARTERLY Vol. 28

dies fast, since henceforth it can only be used to undermine perceived internal
and external stability.8

Indeed, as Martti Koskenniemi has pointed out, there are essentially two
versions of self-determination, competing with each other and eventually
lapsing into each other. There is a “good” version of self-determination that
appeals to one’s democratic instincts and sense of fairness, and there is a
less benign version which appeals to our nationalistic, isolationist, exclu-
sionary instincts. In the end, self-determination “both supports and chal-
lenges statehood,”9 and one is unable to consistently apply a right to self-
determination precisely because one cannot distinguish, much less choose,
between the two.
Given the interests at stake, it is perhaps not surprising that many
studies have been devoted to two questions: does the right to self-
determination exist in international law in any meaningful way and, if so,
does it apply to group X and provide them with the right to secede? The
answers are often curiously odd: Students of self-determination often reach
the conclusion that yes, the right exists, and that yes, it applies to entity X.
Yet at the same time (if they are to be taken seriously), those same
commentators feel compelled to note that even if entity X may have a right
to self-determination, that does not mean that it may exercise its right to self-
determination.10 In fact, whether X may have a right to self-determination
appears to be largely irrelevant for its chances to exercise it. An author may
conclude that X has the right to self-determination, but if X is part of an
existing state, its “right” may not amount to much more than an injunction
not to be discriminated against or, if X is lucky, some form of local
autonomy.11 In short, there is a strong but telling discrepancy between the

8. See ANTONIO CASSESE, SELF-DETERMINATION OF PEOPLES: A LEGAL APPRAISAL 5–6 (1995). Berman
states succinctly that claims of self-determination end up “bypassing sovereignty in the
name of sovereignty.” See Nathaniel Berman, Sovereignty in Abeyance: Self-Determina-
tion and International Law, 7 WIS. INT’L L.J. 51, 102 (1988).
9. See Martti Koskenniemi, National Self-Determination Today: Problems of Legal Theory
and Practice, 43 INT’L & COMP. L.Q. 241, 249 (1994).
10. 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).
11. 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).
2006 Self-Determination in International Law 189

alleged existence of the right in concrete situations and its execution in

those same situations.
Under this framework, two important issues inevitably arise. The first
inquires into the meaning of the right to self-determination: Does self-
determination encompass, as it is so often suggested, a right to secession?
Or would it be more fruitful to think of the two as separate, meaning that
one can have a right to self-determination but not have, at the same time, a
right to secession? The second issue then, if secession is ruled out, is what
this right to self-determination entails and whether it still makes much sense
to regard it as a right.
This article argues that judicial and quasi-judicial bodies have, since the
1970s, reconceptualized the right of self-determination to come to terms
with the (virtual) end of decolonization. Now that self-determination can no
longer simply be construed as a right of colonies to independence,12 it has
evolved into a right of peoples to take part in decisions affecting their future.
This article argues that self-determination is best understood as a procedural
right; that is, entities have a right to see their position taken into account
whenever their futures are being decided. That may not amount to a right to
secede or even to a right to autonomy or self-government, but it does
amount to a right to be taken seriously.13
This position follows the recent practice of judicial and quasi-judicial
bodies and provides a better explanation of that practice than a substantive,
secessionist conception of self-determination does. The story of this recon-
ception of self-determination (from a right of secession to a right to be
heard) will comprise Section II of this article. Section III will subsequently
aim to make some normative sense of this newly fashioned procedural right
to self-determination by positing it against the background of a generally
procedural approach to human rights. Section IV will conclude this article
by suggesting that the right to self-determination is best regarded as a
procedural right: the right to be taken seriously.

12. 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.
13. 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).
190 HUMAN RIGHTS QUARTERLY Vol. 28

II. SELF-DETERMINATION AND THE COURTS

It was probably never very realistic to expect judicial bodies to render final
decisions allowing (or even ordering) existing states to be broken up in the
name of self-determination. For one thing, the very norm of self-determination
used to be (and still is) rather indeterminate—too indeterminate, perhaps,
for uncontroversial judicial application.14 Even the basic inquiry as to its
beneficiaries—the “self” in self-determination—would always spark contro-
versy and worse.15
Moreover, from its first invocations on the international scene, self-
determination has always been plagued by the problem that a decision in
favor of the right to self-determination (where this would imply secession, at
any rate) of one group automatically entails a denial of the same right to
another group.16 The Åland Islands dispute of the 1920s made clear that
allowing the Swedish-speaking Finns to separate from Finland would
undermine the self-determination of the Finns, who had themselves just
barely become independent from Russia. Surely, any legitimacy befalling
Finnish independence would be undermined if it turned out that the Finns
did not constitute a single people but two or perhaps even more peoples.17
Then there is the lure of statehood, which is, by most accounts, a good
thing;18 statehood, after all, is what secessionist movements tend to strive
for. However, if statehood is such a good thing that a group wants it for itself,
then it becomes difficult to argue that existing statehood is, somehow, not
good. Moreover, it would be problematic to argue that decisions on

14. 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).
15. 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 interna-
tional law).
16. 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).
17. On the Åland Islands, see Koskenniemi, supra note 9.
18. 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).
2006 Self-Determination in International Law 191

statehood should be left to courts, not so much because courts are not to be
trusted, but rather because the responsibility is simply too heavy. Disrupting
and even ending the very existence of a political community (possibly, if not
invariably, one with a lengthy history)19 is not something that should be left
to courts.
In this light, it is no surprise that whenever courts have been confronted
with self-determination issues, they have by and large taken the sting out in
two ways: They have separated self-determination from the possible
outcome of secession, and they have somehow declined to regard the right
to self-determination as an enforceable right.
In its last advisory opinion on Namibia, in 1971, the International Court
of Justice (ICJ) still seemed to confirm the existence, in positive international
law, of a right to self-determination. It noted that the right to self-
determination had become applicable to non-self-governing territories such
as Namibia, and indeed it seemed to suggest that the very process of
decolonization could be explained in terms of the application of the right to
self-determination.20 The very function of the mandate system, moreover,
was thought to reside in making the self-determination and independence of
peoples possible. As the Court noted, “the ultimate objective of the sacred
trust was the self-determination and independence of the peoples
concerned.”21
It is no doubt fair to say that the Namibia opinion was not an opinion in
which self-determination was a central issue. The Court’s words, then, were
not terribly consequential, but they nonetheless displayed a conception of
self-determination as a substantive right that accrues to peoples, or at least
to non- self-governing territories, and that those peoples or territories might
wish to see enforced. Indeed, the Court still seemed to conceptualize, in
Namibia, the right to self-determination as a substantive right, applicable
mainly in the context of decolonization.22

19. 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).
See generally BENEDICT ANDERSON, IMAGINED COMMUNITIES (rev. ed. 1991). 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 imag-
ined—precisely because they tap into some primordial feelings).
20. 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].
21. 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.
22. The Mandate territories, after all, were generally former colonies.
192 HUMAN RIGHTS QUARTERLY Vol. 28

That such a conception existed at the time becomes clear from the
separate opinion of Judge Ammoun, who noted, somewhat in passing, that
some of the Mandate territories wanted independence; but because the right
to self-determination had not yet “come to maturity,” those countries would
only gain independence after the Second World War.23 And a few pages
later the same judge, not without flourish, invoked a number of legal and
political instruments relating to self-determination and asked rhetorically:
“Would these international or universal instruments have seen the light of
day if it had not been for the heroic fight of peoples aspiring with all their
hearts after freedom and independence?”24 The right to self-determination,
having been written “with the blood of the peoples,”25 was thus conceived
as an enforceable, tangible right. To whom the right belonged may have
been unclear, but it was clear what it might entail: creation of an
independent state or (often perceived as somehow lesser solutions) affilia-
tion or integration. Indeed, Judge Ammoun drove the point home by
recalling that between 1945 and 1970, no fewer than fifty-five states had
become independent and benefitted from the right of self-determination.26
Still, while seemingly acknowledging the existence of a substantive,
enforceable right in positive international law, the Court in Namibia stopped
short of applying it. Nor did it have to, of course, as the request submitted
by the General Assembly concerned the legal consequences of a Security
Council resolution, rather than whether the population of Namibia would
have a right to self-determination.
In the Western Sahara opinion, issued four years after Namibia, the
Court adopted a different approach. However the Court may have con-
ceived of the legal nature of the right to self-determination (and it is
arguable, at least, that it had departed from the Namibia conception of self-
determination as a substantive, enforceable right), the Court relieved itself
from the obligation to apply it by happily leaving this to the General
Assembly. Having noted that the right of the population to self-determination
formed “a basic assumption of the questions put to the Court,”27 the Court
also reminded the world that the General Assembly had already indicated it
would continue its discussions of the Western Sahara issue in light of the

23. See Namibia Opinion, supra note 20, at ¶ 69 (Ammoun, J., concurring).
24. Id. ¶ 74.
25. Id.
26. Id. ¶ 75. A few pages later he remarked: “Annexation is nothing less than the negation
of the new law of self-determination.” Id. ¶ 91. 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; KAREN KNOP, DIVERSITY
AND SELF-DETERMINATION IN INTERNATIONAL LAW (2002).
27. See Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (16 Oct.), ¶ 70.
2006 Self-Determination in International Law 193

Court’s opinion.28 Thus, the Court was released from the task of settling
anything with any degree of finality; its opinion would merely “furnish the
General Assembly with elements of a legal character relevant to its further
treatment of the decolonization of Western Sahara.”29 Thus, nothing of
substance would have to be decided. Indeed, it is plausible to argue that the
Court was preempted from doing anything substantive to begin with, for
doing anything substantive would have rendered it vulnerable to the
criticism that it was really deciding a contentious dispute between states
without having proper jurisdiction.30
The Court made good use of the General Assembly’s request that it
refrain from deciding issues relating to the self-determination of the Western
Saharans and to whether either Morocco or the Mauritanian entity (a
predecessor of present-day Mauritania) had exercised sovereignty over the
territory at the time of the Spanish colonization. Rather, the General
Assembly asked the Court to determine whether there were any legal ties
between the territory concerned, Morocco, and the Mauritanian entity. The
Court could unhesitatingly answer this in the affirmative, as there had been
legal ties not amounting to sovereignty both between Morocco and the
territory in question as well as between the Mauritanian entity and Western
Sahara.
Thus, none of the states involved could establish title to territory prior to
the occupation of the territory by Spain. Yet both of them could point to
having had something to do with Western Sahara. In the end, then, the
Court found that there were “various relationships” that were “difficult[] to
disentangle.”31 But in the absence of ties of sovereignty, no ties existed that
could affect the application of self-determination with respect to Western
Sahara, in particular the application of “the principle of self-determination
through the free and genuine expression of the will of the peoples of the
Territory.”32
The preceding sentence was the final sentence of the Court’s opinion,
and that fact alone is not without significance. In the particular context of
decolonization, as the Court stressed by means of its final words,
decolonization should be established following the free and genuine
expression of the will of the people concerned. The Court left aside what
this would amount to, but it did establish that it involved the free and
genuine will of the peoples concerned.

28. Id. ¶ 72.

29. Id. ¶ 72.
30. 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.
31. Id. ¶ 160.
32. Id. ¶ 162.
194 HUMAN RIGHTS QUARTERLY Vol. 28

On one level, such a statement creates more problems than it solves.

For example, who are the peoples (note the plural) of the territory? Should
one think at all in terms of territory to begin with, given the nomadic nature
of many of the peoples involved? How does one measure the free and
genuine will of the peoples? Indeed, it is no coincidence that for many years
any attempts at solving matters were frustrated by debates over the question
of which peoples should be consulted.33
It is perhaps also no coincidence that in its parting words, the Court
expressly referred to paragraphs 54 to 59 of its opinion. This would have
been unnecessary, except for the fact that the Court says something of
significance in those paragraphs, something one might otherwise miss when
merely looking at the Court’s admonition that the free and genuine
expression of the will of the peoples concerned had to be found. The
relevant words of the Court in those earlier paragraphs reside in particular in
how it defined self-determination: “the need to pay regard to the freely
expressed will of peoples.”34 This, so the Court strongly suggested, was what
self-determination was all about: not so much about secession or integration
or assimilation or such other modalities as have later been distinguished or
invented.35 Simply, yet fundamentally, self-determination had everything to
do with “the need to pay regard to the freely expressed will of peoples.”36
Indeed, the Court underlined this even to the point of coming close to
undermining it. It noted that the validity of the principle of self-determination
is not affected by the fact that in certain cases the General Assembly has
dispensed with the requirement of consulting the inhabitants of a given territory.
Those instances were based either on the consideration that a certain popula-
tion did not constitute a “people” entitled to self-determination or on the
conviction that a consultation was totally unnecessary, in view of special
circumstances.37
Those are intriguing words for two reasons. Most prominently, they suggest
that while self-determination is relevant, consultation of the people con-
cerned may sometimes be totally unnecessary. One can only speculate as to
what the Court could have had in mind, but one plausible answer is that
some forms of oppression are bad in their own right and automatically
trigger self-determination even without consultations (whether a people

33. See, e.g., THOMAS M. FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 196 (1995).
34. Western Sahara, supra note 27, ¶ 59.
35. 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).
36. Western Sahara, supra note 27, ¶ 59.
37. Id.
2006 Self-Determination in International Law 195

likes it or not),38 with colonialism and apartheid among the most obvious
candidates.
The second noteworthy feature is that the Court did not speak of a right
to self-determination but instead spoke of the principle of self-determination.39
The word right is also studiously avoided when the Court speaks of peoples
not “entitled” to self-determination, as if the Court does its best to strip self-
determination of the earlier connotation that it is a legal right like any other
right. While an entitlement is something to which one may be, quite
literally, entitled, it does not have the same association with courtrooms and
lawyers that the term right has. For instance, one may be entitled to have
loving parents, but surely one has no (legal) right to loving parents.40
If this reading is at all plausible, then it would seem to follow that the
Court had changed its conception of self-determination somewhere in the
run-up to Western Sahara. While self-determination was still regarded,
somewhat offhandedly perhaps, as an enforceable, substantive right in
Namibia, four years later the Court was no longer so convinced that self-
determination was both substantive and enforceable. The move from self-
determination as a right to self-determination as a principle may well have
been inspired by the dawning realization that while it was unproblematic to
think of a right to self-determination to support decolonization, the
postcolonial world would warrant a different approach.
Eleven years later, in 1986, a Chamber of the Court would very briefly
touch upon self-determination in the Frontier Dispute case.41 In this case the
Court’s Chamber was asked to decide partly on the basis of the principle of
uti possidetis, and in laying down the general acceptance of the uti
possidetis principle, it invoked self-determination in support.42 In a famous
passage, the Chamber held:

38. 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.
39. 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); 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”).
40. 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).
41. See Frontier Dispute (Burkina Faso v. Mali), 1986 I.C.J. 554 (22 Dec.) [hereinafter
Frontier Dispute].
42. 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.
196 HUMAN RIGHTS QUARTERLY Vol. 28

At first sight this principle [uti possidetis ] conflicts outright with another one,
the right of peoples to self-determination. In fact, however, the maintenance of
the territorial status quo in Africa is often seen as the wisest course, to preserve
what has been achieved by peoples who have struggled for their independence,
and to avoid a disruption which would deprive the continent of the gains
achieved by much sacrifice.43
While perhaps not too many consequences should be attached to the
Chamber’s sense of phrasing (given that it was not making a point about
self-determination), it is nonetheless worth noting that as in Western Sahara,
self-determination was construed as a principle rather than as a simple right
(although the term right was also used, with self-determination being
construed as the “principle of the right to self-determination”). Moreover,
the Chamber was perfectly happy to view self-determination in territorial
terms, as something belonging to territories. Indeed, its very invocation of
the notion of self-determination in the service of uti possidetis only made
sense on the premise that the peoples entitled to self-determination are
peoples inhabiting a reasonably well-defined territory. Any other construc-
tion would not have allowed the Chamber to enlist self-determination in the
service of uti possidetis but would, instead, only have underlined the
contrast between the two principles.44
The Court also briefly addressed self-determination in the 1995 East
Timor case,45 upon Portugal’s suggestion that by entering into a treaty with
Indonesia, Australia had failed to observe the right to self-determination of
the East Timorese. While the Court dismissed the case, it noted that the
principle of self-determination exists in positive international law and may
even be viewed as a having an erga omnes character.46 Whatever this meant
(and there is room for the view that the Court intended it to mean very
little),47 it did not mean that Portugal had a viable case, at least not against
Australia.
At the end of the day, then, the ICJ has had four occasions on which

43. Frontier Dispute, supra note 41, ¶ 25.

44. 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.
45. See East Timor (Portugal v. Australia), 1995 I.C.J. 90 (30 June) [hereinafter East Timor].
46. 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.
47. 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).
2006 Self-Determination in International Law 197

self-determination was something of an issue. After the first of these

(Namibia), it has consistently referred to self-determination as a principle.
Sometimes, however, as in the Frontier Dispute and East Timor cases, the
Court has used principle and right seemingly simultaneously (though,
importantly, not interchangeably). In those two cases, however, it is also
clear that self-determination was a side issue. Indeed, in East Timor the
Court explicitly referred to the self-determination argument as “addi-
tional,”48 suggesting that while self-determination of the East Timorese was
what Portugal was interested in, Portugal’s legal team was subtle enough not
to use any possible corollaries to self-determination as its principal argument.
Adopting a slightly broader perspective, the ICJ on those four occasions
addressed self-determination, and on none of those four occasions did it say
anything very substantive about self-determination. The most serious treat-
ment was in Western Sahara, in which the Court reconceived self-
determination into a procedural principle, having a lot to do with figuring
out what the people want but without necessarily attaching any particular
consequences to the peoples’ free and genuinely expressed will.
Other courts and tribunals (or quasi-tribunals) have also chipped in to
the reconception of the notion of self-determination, but they have done so
in a different manner. While the ICJ has done much to reinvent self-
determination as a principle rather than a right, other bodies have tended to
stress the lack of enforceability of self-determination by radically separating
self-determination from its most obvious consequence, the (possible) right
to secession. Thus, the Supreme Court of Canada, in its opinion on Quebec,
was adamant that self-determination somehow stops short of secession.
Instead, so the Court held, “international law expects that the right to self-
determination will be exercised by peoples within the framework of existing
sovereign states and consistently with the maintenance of the territorial
integrity of those states.”49 Only in highly exceptional situations would self-
determination lead to a right to secede. To drive the point home, the Court
observed that there was “no necessary incompatibility between the mainte-
nance of the territorial integrity of existing states, including Canada, and the
right of a ‘people’ to achieve a full measure of self-determination.”50
Likewise, the Badinter Commission, endowed with the task of assisting
the European Union in formulating its policies towards the dissolution of
Yugoslavia and confronted with the loaded question of whether the Serbian
population of Bosnia-Herzegovina and Croatia would have a right to

48. East Timor, supra note 45, ¶ 29.

49. The text of the opinion is helpfully reproduced in SELF-DETERMINATION IN INTERNATIONAL LAW:
QUEBEC AND LESSONS LEARNED 455, 495 (Anne Bayefsky ed., 2000).
50. Id. at 497.
198 HUMAN RIGHTS QUARTERLY Vol. 28

self-determination,51 noted that self-determination does not encompass a

right to secede and, indeed, amounts to little more than minority treat-
ment.52 In fact, the Badinter Commission reconceived self-determination to
serve so as to “safeguard human rights. By virtue of that right [self-
determination] every individual may choose to belong to whatever ethnic,
religious or language community he or she wishes.”53
For its part, the UN Human Rights Committee also seems to have
embraced a relatively narrow version of the right to self-determination. Most
remarkably, perhaps, its General Comment 12 seems to conceive of self-
determination as predominantly serving individual rights.54 Additionally,
when calling upon states to “describe the constitutional and political
processes which in practice allow the exercise” of the right to self-
determination, the underlying conception appears to be the rather limited
one of a legal norm that can only (or predominantly) be implied
domestically.55
The picture that emerges from some of the relevant recent case law and
authoritative opinions is that self-determination should not be considered
exclusively a hard, substantive, and enforceable right that could ultimately
include a right to secede, but that self-determination has been given a more
limited meaning. The exact identity of that more limited meaning remains
unclear, and the Badinter Commission could with some justification state
that “international law as it currently stands does not spell out all the
implications of the right to self-determination.”56 What is clear, though, is
that courts and tribunals are not in the habit of equating self-determination
with secession; instead, secession increasingly comes to be viewed as a new
possible “right” in its own right, separate from a right to self-determination.57
Moreover, increasingly self-determination is seen not as an enforceable right

51. For a lengthy and in-depth analysis, see KNOP, supra note 26.
52. See Badinter Commission (No. 2), 92 I.L.R. 167 (1993).
53. Id. at 168–69.
54. 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. The document is conveniently reproduced in
ECONOMIC, SOCIAL AND CULTURAL RIGHTS: A TEXTBOOK annex 3, at 455 (Asbjorn Eide et al. eds.,
1995).
55. 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.
Indeed, for a sustained critique of a constitutional right to secession, see CASS SUNSTEIN,
DESIGNING DEMOCRACY: WHAT CONSTITUTIONS DO 95–114 (2001).
56. Badinter Commission, supra note 52, at 168.
57. 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).
2006 Self-Determination in International Law 199

but rather as a more open-textured principle. Indeed, the courts are not even
in the habit of viewing self-determination as something they can easily
enforce. They are not in the habit of viewing self-determination as a right in
the way that term is usually understood.

III. MAKING SENSE OF SELF-DETERMINATION

International lawyers have observed, from the late 1980s to the present, that
international legal norms are bound to remain indeterminate.58 In a pluralist
world in which values are colliding on fundamental levels,59 agreement
between actors is difficult to reach; and as a result, norms are bound to
remain open-ended.60 This raises the possibility—the specter—that eventu-
ally the open-ended nature of those norms may be used by those in power
to oppress the downtrodden in the name of higher values.61
Rights generally, including rights frequently referred to as human rights,
cannot escape from the predicament of indeterminacy.62 Rights, on this
view, are not beyond politics but are themselves intense manifestations of
political battle.63 With the right to self-determination, this plays out in the
law’s inability to decide whether the right of self-determination of group X
should result in the breakup of state Y and whether it should possibly
override competing claims from groups residing on territory where X
happens to be in the majority (Serbs in Bosnia, for instance).64
In order to counter the totalitarizing potential resulting from the law’s

58. See DAVID KENNEDY, INTERNATIONAL LEGAL STRUCTURES (1987); MARTTI KOSKENNIEMI, FROM APOLOGY
TO UTOPIA: THE STRUCTURE OF INTERNATIONAL LEGAL ARGUMENT (1989).
59. The locus classicus is ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (2d ed.
1984).
60. 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).
61. 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).
62. See DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION: FIN DE SIÈCLE (1997). 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).
63. Examples of a critical attitude towards rights thinking would include COSTAS DOUZINAS, THE
END OF HUMAN RIGHTS (2000), and the papers collected in SCEPTICAL ESSAYS ON HUMAN RIGHTS
(Tom Campbell et al. eds., 2001) (recognizing and exploring the political nature of
rights).
64. For a critical analysis of the right to self-determination, exploring the emancipatory
potential offered by its indeterminacy, see KNOP, supra note 26.
200 HUMAN RIGHTS QUARTERLY Vol. 28

indeterminacy, and inspired by (neo-) republican political theory and

discourse theory, a distinct strand of international legal scholarship has
developed that argues in favor of a “culture of formalism,”65 a style of
politics that is not goal-oriented,66 advocating the message that “there must
be limits to the exercise of power, that those who are in positions of strength
must be accountable and that those who are weak must be heard and
protected.”67
The rule of law, once considered to shield humanity from the exercise
of naked power, is eventually unable to perform this task. It ends up
reproducing earlier power configurations, while masking this precisely by
presenting itself as value neutral.68 Its name notwithstanding, the rule of law
remains the rule of humanity, privileging some while oppressing others.
The open-ended nature of many human rights is increasingly recog-
nized, precisely by turning them into bundles of procedural entitlements.
Perhaps the best example is the way that the European Court of Human
Rights has given flesh to the right to life, enshrined in Article 2 of the
European Convention on Human Rights.69 While declining to say anything
much about the great moral issues relating to life (abortion, euthanasia, the
death penalty), the Court has conceptualized the right to life as a combina-
tion of obligations to provide security and to investigate suspicious deaths.70
It is surely also no accident that recent human rights discussions focus
on seeming technicalities71 and that recently adopted instruments take a

65. 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.
66. See Jan Klabbers, Constitutionalism Lite, 1 INT’L ORG. L. REV. 31 (2004) (endorsing a non-
instrumental style of politics).
67. See KOSKENNIEMI, GENTLE CIVILIZER, supra note 65, at 502.
68. For a critique, see MARTIN LOUGHLIN, SWORD & SCALES: AN EXAMINATION OF THE RELATIONSHIP
BETWEEN LAW & POLITICS (2000). 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).
69. 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).
70. 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).
71. 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); RESERVATIONS TO HUMAN RIGHTS TREATIES AND THE VIENNA CONVENTION REGIME:
CONFLICT, HARMONY OR RECONCILIATION (Ineta Ziemele ed., 2004).
2006 Self-Determination in International Law 201

fairly procedural approach. For example, the right to water, outlined in a

general comment emanating from the Committee on Economic, Social and
Cultural Rights, does not provide a right to water as such, but does provide
a set of norms relating to access to water, nondiscrimination, monitoring,
adoption of a water strategy, and measures related to diseases.72 Similarly, in
its decision in Grootboom,73 the South African Supreme Court managed to
conceptualize the right to adequate housing as a set of procedural norms,
which was met with an excited response in the literature.74 In particular (but
not exclusively) with socioeconomic rights, such proceduralization might
result in turning vague, seemingly unenforceable norms into concrete
entitlements.75
Until human rights became internationalized after World War II, it was
by no means unorthodox to view them as more or less procedural devices
aimed at safeguarding the political process. At any rate, Ivor Jennings,
speaking of “fundamental liberties,” put forth in 1943 such a procedural
conception of human rights: “The fundamental liberty is that of free
elections, and the others, including some at least of their limitations, follow
from it.”76 What mattered to Sir Ivor, in other words, was the integrity of the
political process. Human rights were considered to be instrumental to this
well-nigh republican goal.77
In 1980, a largely procedural approach was undertaken with respect to
constitutional rights and the United States Constitution by John Hart Ely in
his classic Democracy and Distrust: A Theory of Judicial Review.78 One of
Ely’s main points was that the US Constitution, in guaranteeing rights, did

72. 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).
73. South Africa v. Grootboom 2001 (1) SA 46 (CC) (S. Afr.).
74. 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.”
75. 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).
76. 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.
77. 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). For a useful discussion, see Jeremy Waldron, Arendt’s Constitutional Politics, in
THE CAMBRIDGE COMPANION TO HANNAH ARENDT 201 (Dana Villa ed., 2000). An attempt to
apply Arendtian thought to human rights law is Jan Klabbers, Glorified Esperanto?
Rethinking Human Rights, 13 FINNISH Y.B. OF INT’L L. 63 (2002).
78. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980).
202 HUMAN RIGHTS QUARTERLY Vol. 28

not so much aim to protect specific values, as often argued, but rather aimed
to provide guarantees to safeguard the political process.79
Ely’s approach has met with much criticism. Some of his critics have
argued that the criminal law provisions of the US Constitution cannot be
viewed in isolation from the values underlying them.80 Others have argued
that the very process of which Ely seems so supportive itself turns into
substance;81 that he is wrong on points of history;82 that it is unclear why
political participation would be the overriding value;83 and that, in the end,
procedure and values cannot be so neatly separated.84
Yet, much of the criticism was focused upon Ely’s presentation. His
critics considered his work to be not only an exercise in political theory but
also, and above all, perhaps (and with considerable justification), an
attempt to describe an actually existing state of affairs. Mainly, then, the
critiques concentrated on the (possibly) descriptive inaccuracies and Ely’s at
times debatable analyses of the case law and the intentions of the founding
fathers.85 But it is useful to note that the normative side of Ely’s argument has
remained virtually unaffected. Indeed, several authors writing later have,
advertently or inadvertently, picked up on his argument and have worked
along similar lines.86
As a result, and born out by the judicial and quasi-judicial practice
discussed above, a working theory of self-determination ought to focus not
on the norm as one creative of judicially enforceable substantive rights but
rather as a bundle of procedural rights: a right to be heard and be taken
seriously.87 This has the added benefit, incidentally, of severing the connec-
tion between self-determination and territory. Philosophically, there is no
plausible justification for limiting self-determination to territorial units.88

79. See id.

80. 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).
81. See Paul Brest, The Substance of Process, 42 OHIO ST. L.J. 131 (1981).
82. See Raoul Berger, Ely’s “Theory of Judicial Review,” 42 OHIO ST. L.J. 87 (1981).
83. See, e.g., Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional
Theories, 89 YALE L.J. 1063 (1980).
84. Id. at 1067.
85. 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).
86. 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. See RAN HIRSCHL, TOWARDS JURISTOCRACY:
THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM 186–89 (2004).
87. 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); 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).
88. See Margalit & Raz, supra note 4.
2006 Self-Determination in International Law 203

Instead, self-determination as a procedural right would also apply (poten-

tially, at least) to groups that are not territorial, such as churches, social
classes, migrant workers, and dispersed peoples.
Disputes about values (and self-determination is no exception) are
essentially political disputes that, as such, demand a resolution reached
within the body politic—at whatever level such a body politic might exist,
from global to local.89 Here the importance of political participation comes
in. A right to participate enables everyone to take part in political decision
making, however small the part may be.90 It is no coincidence that Hannah
Arendt referred to the right to participate (in the context of citizenship) as
“the right to have rights,”91 indicating that all other possible rights presup-
pose membership in a political community.
The point, then, is to reconceptualize self-determination as a proce-
dural norm. Decisions affecting groups of people should be taken, at the
very least, with those groups having been consulted. That does not mean
those groups should have a veto—not necessarily, at any rate. Nor does it
even mean that the group’s view would be binding on the decision maker—
again, not necessarily, at any rate. It simply means that the group should be
heard and should be taken seriously.
Such a reconceived version of self-determination has several advan-
tages over the classic substantive one aiming, eventually, for secession. One
of the advantages is that it places less of a premium on the disputed but
inherently limited notion of peoples.92 It largely (if not totally, perhaps) does
away with the need to draw tight lines around groups, something that
inevitably ends up drawing rigid patterns of inclusion and exclusion, which
are themselves difficult to justify.93
A second advantage of a proceduralized vision of self-determination is
that it would not engender any false hopes (and with false hopes, perhaps,
lots of bloodshed)94 or, at least not to the same extent that a secessionist,

89. See generally JEREMY WALDRON, LAW AND DISAGREEMENT (1999) (suggesting that political
questions can best be answered in by means of political processes).
90. 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).
91. See ARENDT, supra note 77.
92. 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).
93. See, e.g., BONNIE HONIG, DEMOCRACY AND THE FOREIGNER (2001) (highlighting how foreigners
contribute to democracy).
94. On the violence often accompanying claims of self-determination (and the logic behind
the violence), see MICHAEL IGNATIEFF, BLOOD AND BELONGING (1994).
204 HUMAN RIGHTS QUARTERLY Vol. 28

value-based conception of self-determination does. It does not promise a new

homeland beyond the horizon; it does not promise a secular version of a
communitarian paradise, in which likes shall live with likes alone. Indeed,
apart from carrying the promise of paradise, the secessionist version also
carries the threat of exclusion: Outsiders are not welcome or, at best, may be
welcome but should listen and behave respectfully.95 And citizenship, with its
appended individual political rights, does not necessarily follow, as the ethnic
Russians in the Baltic states have found out to their considerable detriment.
A third advantage, then, of the proceduralist version outlined above is
that it honors the importance of the political process.96 Oppression of
people and peoples usually occurs in the name of the greater good; the only
protection one has against such oppression is not so much to escape from
the political process by seceding, and thereby possibly creating new
moments and opportunities for oppression, but rather to participate in the
political process.
All this also implies that the version outlined herein differs crucially
from the more familiarly posited right to internal self-determination, even
though it shares an obvious relation thereto.97 The right to internal self-
determination came about, it could be argued, as a compromise position:
Where secession or external self-determination would be out of reach, the
least one could expect from states is that they would somehow not make
peoples’ lives too miserable. Hence it means, usually, that states should
guarantee the human rights of peoples and their members and provide for
such things as local autonomy if and when appropriate. If the state fails to
provide internal self-determination, then eventually the people concerned
can claim a right to external self-determination, which is, most likely, a right
to secession. This, however, would re-create the familiar problems all over
again, merely postponing the tension between self-determination and
territorial stability from manifesting itself.
More importantly perhaps, discussions on internal self-determination
are invariably98 structured in terms of the rights of individuals. Indeed, they

95. 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).
96. 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.
97. Probably the most sophisticated and sustained analysis of internal self-determination and
its consequences to date is RAIC=, supra note 3.
98. 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.
2006 Self-Determination in International Law 205

have to be, precisely because outlining the group at issue is both difficult
and, often enough, leads to awkward patterns of exclusion. Hence, the
focus comes to rest on the group as a collection of individuals, possessing
individual rights. As long as individuals enjoy freedom of expression and
assembly, nondiscrimination, freedom from torture, and other rights, the
right to self-determination is thought to be sufficiently respected. This ends
up denying the group aspect that is so central to the very notion of self-
determination; it is precisely the communal nature of the group that
demands respect.99 Breaking down the group into its composite elements,
into a mere aggregate of individuals therewith, undermines the very thing it
aims to advocate.

IV. CONCLUSION

In the end, the natural arena for political debates is the body politic. By
engaging in the typical lawyerly vice of visualizing self-determination as a
substantive right of peoples, enforceable in much the same way as a
contractual right or a right to damages, international lawyers for a while lost
sight of the fundamental problem involved in having the courts settle
political differences in the absence of clear legal guidance.
Faced with the question of ordaining the impossible, the ICJ and other
tribunals quickly realized, however, that the impossible was, quite literally,
the impossible, and it is no coincidence (and indeed only proper) that the
ICJ in Western Sahara played the ball back to the General Assembly. Instead
of giving judicial approval to the break-up of states, courts have reinvented
the notion of self-determination, in two related ways. They have turned it
from a seemingly hard and enforceable right into a far more open-ended
principle and have separated it from its Siamese twin at birth, which is the
right to secession. In doing so, the courts have reconceived self-determina-
tion into a procedural norm.
That does not mean that self-determination has been emptied of all
contents; the reality is far from it. Instead, the courts have contributed to
political thought by turning self-determination into a procedural guarantee.
Because even democracy, however valuable, can lapse into the tyranny of
the majority, a procedural right to be heard is invaluable. In fact, many
human rights exist not to give shape to underlying values but instead to help

99. 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).
206 HUMAN RIGHTS QUARTERLY Vol. 28

determine the values of a political community by allowing for unfettered

and unencumbered political debate. Surely, in addition to individuals,
groups have certain things that concern them as groups; it is hence of the
utmost importance that groups be heard. This does not amount to a right to
secede and form a state of their own but instead replaces such an unhelpful,
if romantically attractive, right with something far more practical: the right
to be taken seriously.