(Dis-)Locating Sovereignty?

States, Self-Determination and Human Rights

By
Liberty Leading the People
(Dis-)Locating Sovereignty? : States, Self-Determination and Human Rights - Vincent Depaigne

Abstract

The purpose of this paper is twofold. First, I will show how the issue of sovereignty has been transformed by the self-determination principle. Second, I will look at how self-determination is both a reinforcing and weakening factor for state sovereignty. Eighteenth-century foundations of self-determination, in particular the social contract theory of Jean-Jacques Rousseau and the American and French Revolutions, have transformed traditional state-based conceptions of sovereignty inherited from the Treaty of Westphalia. I will show how the dilemmas and contradictions identified at the time have received only partial and inconsistent answers in the present international system.

Introduction

Sovereignty in its most straightforward meaning is supreme authority. Such a succinct definition raises the question of the source of sovereignty. In the classical view of international law, sovereignty is vested in the state: the “formation of a new state is … a matter of fact and not of law.”[1] This view of international law does not say much about sovereignty: it provides a foundation for state sovereignty, but is dependent on a state’s will to bind its sovereignty.[2] Just as “social contract” theories have sought to determine discover the origin of sovereignty, international law scholars have sought whether the source of international law rests solely with states or has autonomous sources.

Self-determination has transformed international law and its view on the origin of sovereignty. Today, it is a powerful factor of legitimacy in the international order to justify claims of sovereignty. In the words of Tomuschat, “[s]tates are no more sacrosanct. Their existence is not exempt from challenge, even on a legal plane.”[3] Self-determination introduces a particular instability to the concept of statehood, reinforcing and undermining it at the same time.[4] Even if, as we will see, the legal application of self-determination remains limited in scope, its very existence makes it a powerful political tool in the hands of groups that see themselves as constitutive of political units. International law has taken— rightly or wrongly—a conservative view of the application of self-determination, giving greater privilege to state-based international stability over a wider interpretation of self-determination, fearing this would result in open-ended claims to statehood.[5] Adopting a view from international law, this paper will show that the international and national levels, as well as the internal and external aspects of sovereignty, are closely linked and converge toward a single view of sovereignty as an expression of the will of the people, based on self-determination.

The first part of the present paper describes the ideal model of sovereignty developed by Jean-Jacques Rousseau and shows how his social contract theory has influenced the present understanding of self-determination under international law. The second part addresses the impact of the French and American Revolutions on today’s conception of sovereignty and self-determination. The third part shows how self-determination is both reinforcing and undermining state sovereignty. The fourth part looks at the issue of group rights as a way to reconcile the tensions between self-determination and state sovereignty.

An Ideal Model of Sovereignty: Rousseau

Rousseau’s Du Contrat Social, published in 1762, provides an ideal model of sovereignty, not a practical or directly applicable solution. One misunderstanding with today’s literal reading of the idea of the social pact is that the reference to natural law, dominant in Rousseau’s time, has been replaced by a positivistic view of law. The “social pact” as seen by Rousseau is not a construct, but rather a discovery of what already exists, making explicit what is immanent to a given society. For Rousseau, “natural law” and “political law” are distinct concepts: the social pact derives from natural law, while the political institutions are meant to implement the pact, not alter it.[6]

For Rousseau, the sovereign is defined as the absolute power to make the law, which cannot be alienated or represented, and as the one who is above it, which cannot be alienated or represented.[7] The sovereign is the sum of its constituents, and the will of the sovereign and of its individual members is by necessity congruent: this congruence is made possible only by the distinction between private and public spheres, the volonté particulière (particular will) and the volonté générale (general will).[8] The notion of “general will” is central to the whole construct: it is where the will of the individual and of the group coincide.[9] That is why for Rousseau sovereignty, like general will, is indivisible. The general will can emanate only from the whole group; it cannot come from a part of it. As a result, there should be no “partial societies” within the state. However, Rousseau realises as well that the presence of partial segments within the state may not always be avoided. In this case, these should be multiplied and have equal status.[10]

The “general will” is that of the “people.”[11] In the following discussion on self-determination, we shall see that this notion is central and that the unity of the people which prohibits sub-groups to separate from it remains central to how self-determination is exercised today. Another element that is part of sovereignty in Rousseau’s view is the notion of equality: this is the main balancing factor to contain excesses by the sovereign. The nature of the social pact is such that its reciprocal nature ensures that others’ interests and one’s own interest can be aligned. Equality in duties and rights is the essence of this pact. The sovereign cannot burden one of its subjects more than any other, as it would then lose its general nature and become the expression of a “particular” will.[12]

When it comes to legislating, Rousseau moves closer to Montesquieu. He underlines the need to take into account the particular character of each people. Rousseau’s anthropology is therefore one which is concerned with the “natural” diversity of the various peoples.[13] It is a misreading of Rousseau to equate “general will” and self-government: “general will” is not represented by a particular form of government, but also reflects longstanding traditions and customs. Rousseau talks of customs as an “unknown,” “secret” law, which is also the most important law.[14] His distrust of representation reflects a view that perfect democracy is out of reach and, as a result, government’s legitimacy is only provisional.[15] Discerning the “general will” is neither submitting to particular expressions nor imposing a single and homogenous kind of political organisation. Rousseau makes a clear distinction between the sovereign (which is the expression of the social pact) and government (which is acting under the mandate given by this pact without any possibility of changing it).[16]

Rousseau is aware of the practical limits of his ideal system when faced with the reality of diverse cultural and historical traditions, but his whole system posits the alignment between the individual, the people and the state. As we will see, Rousseau’s theory has influenced the conception of the sovereign nation-state under international law. One can trace his influence especially in the concept of self-determination of peoples, which will progressively grow in importance in international law from the French Revolution to the emergence of a right to self-determination in international law after World War I.

Sovereignty of the People in Practice: the French and American Revolutions

The French Revolution: Sovereignty as a Human Right

The French Revolution was influenced by Rousseau’s ideas, which provided a theoretical framework for a new political regime that struggled to legitimize its power in opposition to that of the king. The new political order was based on a new conception of sovereignty: it was no longer believed to be in the hands of God. This new approach vested sovereignty with the people and its representatives.[17] Gauchet shows how the Declaration of the Rights of Man and the Citizen of 1789 reflected an attempt by the parliament to become a source of legitimacy that could compete with the king’s own legitimacy.[18] The universalism of the Declaration can be explained by the need to ground the new political order in transcendent, natural law, so as to oppose the transcendent religious source of legitimacy of the king.[19]

Based on the newly adopted human rights declaration, the theory of general will offered this alternative paradigm. The link between human rights and general will is made in Article 6 of the 1789 Declaration (“the Law is the expression of the general will”), while the link between human rights and sovereignty results from Article 3 (“the source of all sovereignty lies essentially in the Nation”).[20] The sovereign is no longer the king, but the nation. Sovereignty is tied to human rights. The sovereign derives its legitimacy from the freedom and well-being of its constituent parts, the individuals. This relation is reciprocal. Human rights legitimize the sovereignty of the nation, and in turn this sovereignty legitimizes human rights.

The sovereign nation is thus a “society of individuals.”[21] Sovereignty is not seen as limiting the freedom of the individual but, on the contrary, in the “Rousseauist” way, as enhancing this freedom.[22] A major difference between the 1789 Declaration and the previous American and British Bills of Rights is that the issue is not about containing political power, but about making it the very source of freedom. Sovereignty is not seen as a potential threat to individual rights, but as an enhancer of them.[23] Where Rousseau saw the source of sovereignty in a community of equals, the French Revolution built a “human rights community.”

This revolutionary program raises a number of dilemmas that remain central to the present-day discussion on democracy and self-determination. The revolution did not solve the issue of how to maintain the harmony among individuals and collective levels. The idea that the sovereign deliberation of the people will always respect and result in the protection of human rights appears axiomatic and grounded in natural law, but it is not explained.

The scope of human rights is also problematic. Are the rights those of the citizen or of all humans? In other words, how are the “universal” rights of all men connected to their implementation in the context of a given “particular” nation?[24] A related issue is how to ensure that the nation is at all times “congruent” with the state, given the fragility of human rights as a logical and practical foundation for the political order. Keitner points to a number of paradoxes facing the “voluntarist” nation. What is the origin of the social pact, and what is its anteriority? How is a constitutional order which reflects truly the “general will” defined? How are insiders and outsiders in a nation based on universal ideas separated? How are these principles at international level implemented?[25]

The United States Declaration of Independence: A Blueprint for Self–Determination?

The United States Declaration of Independence of 1776 outlines a conception of self-determination that has influenced contemporary views on self-determination in many respects. The first paragraph mentions “the separate and equal station to which the Laws of Nature and of Nature’s God entitle” any “people.” The Declaration also states that such separation cannot be without reasons and that “Governments long established should not be changed for light and transient causes.”[26]

According to the Declaration, “to secure the rights [mentioned in the Declaration], Governments are instituted among Men, deriving their just powers from the consent of the governed.” As a result, “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” Secession is thus not an unconditional right, but arises only when a government is not ensuring people’s rights: “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government.” The Declaration then lists the abuses of the rights of US citizens by the British government, as a justification for US independence.

In many respects, the Declaration of Independence represents the “external” side of the “Rousseauist” social contract. Government should be based on the consent of the people. Changing the social pact should not happen for light reasons, but the ultimate source of sovereignty is the consent of the governed. “Internal” and “external” self-determination are thus linked. The French Revolution also developed similar views on self-determination at the international level.[27]

The French and American Revolutions have influenced the conceptions of state sovereignty and self-determination at the international level.[28] A new conception of sovereignty, based on “the rights of nations to choose the form of their government,”[29] was opposed to the traditional, monarchical source of sovereignty. The French Revolution introduced the idea that peoples or nations and states should be congruent.[30] This idea was applied not only to a particular people, but to humanity as a whole. An echo of this can be found in the Universal Declaration of Human Rights, which states that “the will of the people shall be the basis of the authority of government.”[31] The American Revolution influenced the “Wilsonian” vision of the international order laid down in the aftermath of World War I. US President Wilson’s views can be seen as an extension, at the international level, of the emphasis on the consent of the governed, which forms the core of the Declaration of Independence.[32]

These ideas have transformed the traditional international system, introducing a competing source of legitimacy for state sovereignty. Since the eighteenth century, these new ideas have created profound contradictions that are still at the heart of the contradictions of today’s world order.

Self-Determination: The Demise of State Sovereignty?

The Crisis of the Westphalian Model

The classical model of state sovereignty in international law finds its historical origin in the Westphalia Treaty of 1648 following the Thirty Years’ War. Westphalia marks the end of the European hierarchical order inspired by the idea of a “Christian commonwealth,” which was dominated by the Pope and the emperor. Likewise it marks the rise of a model based on state sovereignty enshrined in mutually agreed-upon and treaty-based obligations. However, it should be noted that Westphalia did not create a world of unrestrained sovereignty, as is often said. A number of guarantees for religious minorities were inserted, which reflected the religious dimension of the Thirty Years’ War and which opposed Protestant and Catholic powers of the day. The use of force, while not ruled out, is subject to a number of conditions, in particular dispute settlement provisions.[33] The structural instability of a system solely based on states’ will and balance of power without superior law was noted by thinkers who sought to ground international law in a source of law independent of that grounded solely in state sovereignty. In 1795, Kant presented his idea of a “federation of nations,” which—referring to Rousseau—he compares to the social contract among individuals. The state of nature among states as among individuals (state of savages) is marked by violence; the only possible response to end a perpetual state of conflict is to establish a federation that will ensure security and rights for every nation on the basis of equality (as individuals enjoy under the social pact).[34] For Kant, “war… cannot determine a right” and “a treaty of peace can put an end to some particular war, it cannot end the state of war.”[35] Kant believed in the principle of non-interference (“no nation shall forcibly interfere with the constitution and government of another”[36] ), and the republican form of government is the most conducive to peace as it based on the “consent of the citizenry.”[37]

The crisis of the classical Westphalian model began with the onset of World War I, when the international system was no longer able to offer stable mechanisms to adjudicate competing assertions of sovereignty. Even if the break with the Westphalian period should not be overstated, a new vision of international law emerged with the creation in 1919 of the League of Nations and the progressive recognition of the principle of self-determination under international law. This marked the end of the unrestrained dominance of state sovereignty over international law. New international rules appeared necessary to prevent war. The League of Nations was a first but unsuccessful attempt, followed by the United Nations in 1945. The 1945 United Nations Charter asserts two related principles: “friendly relations” and self-determination. According to the United Nations Charter (article 1.4), one of the purposes of the United Nations is “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.” The use of force is banned by article 2.4. As a result, mere control of territory is not enough to assert sovereignty. Self-determination is, therefore, closely connected with the prohibition of use of force. To be qualified as legitimate under international law, a sovereign power— at least where there is a change in sovereignty, territorial disputes or situations of oppression—will have to find new justifications for its foundation.

Self-Determination as a New Foundation for Sovereignty

The traditional criterion for state recognition under international law, which requires effective control over a defined territory,[38] is challenged by the notion that self-determination can represent an autonomous, alternative criterion to define sovereignty.[39] The main difficulty is that territorial control and self-determination are conflicting and contradictory sources of state legitimacy at the international level. Practicing the Wilsonian rhetoric on self-determination in Europe after World War I proved challenging. In 1918, Wilson defined general principles, but he also had to address the settlement of particular territorial disputes in Europe following World War I.[40] As a result, the post-war settlement consisted of a set of particular arrangements with some references to general principles, but it did not lead to the establishment of a new coherent framework to implement self-determination.[41]

Self-determination, then, came when sovereignty was uncertain, disputed or “in abeyance.”[42] The need to settle self-determination claims necessitated the introduction of international adjudication mechanisms.[43] Self-determination thus acts as a “meta-norm,” a subsidiary norm, which comes into play when usual international norms are not operative: for Berman, “issues of self determination arise in unusual temporal or spatial gaps in the legal system.”[44] Even though self-determination appears at first sight as a marginal legal concept, its exceptional character can be considered itself as a sign of its potential importance, as a principle anterior to the state, when “international law [is] competent to discuss the birth of states.”[45]

Self-determination is here linked to “the right of the people to constitute their own political system (pouvoir constituant).”[46] Self-determination has to do with the foundation of the state, with the “social pact.” In this sense, it happens only once, whenever a state is created or at critical historical moments, such as when states dislocate. As was said in the American Declaration of Independence, such a right should be exercised only in the most extreme or exceptional circumstances.

Another view of self-determination is the “equality theory,” according to which self-determination is a right of dominated peoples. It arises in situations of oppression, occupation or colonization, which deny the dominated equality to the dominant.[47] These ideas find their origin in the French and American Revolutions and have been central to the development of the right to self-determination during the decolonization period of the 1960s. In the 1971 case of Namibia, Judge Ammoun determined that self-determination be based on human equality.[48] In the 1921 case of Aaland Island (Commission of Rapporteurs), it was suggested that under extreme oppression, self-determination claims can arise.[49] This view of self-determination can create a “mirror effect.” More than one group in a single territory may be entitled to self-determination. In the 1920 case of Aaland Island, the International Commission of Jurists rejected Finland’s claim that it could assert its own sovereignty, but this right was also denied to other national groups within its territory.[50] At the time of decolonization in the 1960s, self-determination was defined as applying to colonial populations, on the basis of the international consensus built at the United Nations.[51]

However, decolonization was also based on the principle of intangibility of borders inherited from colonial powers (uti possidetis), which was meant to guard against the instability created if self-determination claims were unchecked. The uti possidetis principle was reiterated by the International Court of Justice in the 1986 case concerning the frontier dispute between Burkina Faso and the Republic of Mali.[52] Decolonization shows how self-determination did not unravel state sovereignty but, on the contrary, served as a new justification for state authority, as is shown by the insistence of newly born states to preserve their sovereignty and avoid external interference in the name of self-determination.[53]

State integrity remains the cornerstone of the international system. Self-determination cannot determine alone the allocation of sovereign power, but is rather an exceptional lifting of the normal exercise of state sovereignty. The drafters of the American Declaration of Independence foresaw the destabilizing potential of self-determination exercised without any checks. This view was confirmed in the Aaland Island case. The International Commission of Jurists said that there was no general right to separatism under international law, as it would infringe on rights of the states and endanger international stability.[54] Self-determination is not unconditional but can only be exercised under exceptional circumstances when state power does not operate normally.

The concept of self-determination has been put in practice to resolve particular issues of international concern (such as Eastern Europe after 1919 or decolonization in the 1960s). It has not—and most probably cannot—lead to the establishment of a consistent set of international standards. As a result, self-determination has not become a legal concept directly applicable at all times and in all places. It is still in many respects lex obscura.[55] For Crawford, outside the realm of colonial situations, self-determination remains “non-self executing.” It is a “critical standard,” but it does not “determine particular institutions or outcomes.”[56]

With all its limitations, self-determination is nonetheless established as a universal norm. As a result, it is potentially universally applicable. It is this latent effect that makes it an important underlying force in the international system. The influence of self-determination as political principle is stronger than its direct legal applicability may suggest. Once it has been introduced as a concept applicable under international law in one part of the world, it can hardly be disregarded in other parts of the world.

Self-Determination or the Dilemmas of Group Rights

A Definition of the “People”; How to Define the “Self”?[57]

In order to define the scope of self-determination it is necessary to determine what is meant by “the people.” This definition is dependent on particular historical contexts. Self-determination, however, has been progressively extended to become a universal principle applying to all people.[58] A first definition of “peoples” targets groups that are either colonized or oppressed. There is general consensus on the right to self-determination of colonized peoples and also to those under foreign occupation.[59]

The statist view provides an alternative definition. While nothing suggests that “people” means “state,” the statist view identifies people according to their territorial loyalty.[60] This view, which focuses on internal self-determination, is based on the first articles of the twin Human Rights Covenants (the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights of 1966 both contain in their first article an identical formulation of the right to self-determination) and on the 1970 United Nations General Assembly Declaration on friendly relations and cooperation among states.[61] While United Nations declarations all insist on territorial integrity, the 1970 Declaration adds a “saving clause” that provides that territorial integrity applies to states “possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or color.”[62]

Finally, people may be defined by their ethnicity even though international law does not generally accept such a definition.[63] This ethnic view relates to groups and minority rights rather than to self-determination. While Article 1 of the International Covenant on Civil and Political Rights deals with self-determination, Article 27 of the Covenant treats the issue of minority rights. But this raises, in turn, the issue of when a minority becomes a “people.” It also raises the issue of the definition of an ethnic group, which tends to oppose the notions of “subjective” (expressed will of the group) and “objective” (ethnic, religious and other factors).[64] Both terms need not be exclusive, as self-determination often results from their combination. Demos, or the democratic will, is opposed to ethnos, or cultural roots, when both can be seen as interactive polarities, or as ethnos often forms the basis of demos.[65]

Self-determination does not occur in a vacuum. Rousseau mentioned the centrality of local culture and customs to the expression of the general will. Groups asking for self-determination usually ground their claims in history. Existing states and borders usually serve as reference points to exercise self-determination.[66] As Jennings observed, “people cannot decide until someone decides who the people are.”[67] It would be wrong to assimilate the statist view with an expression of the demos and the ethnic view with the ethnos. “General will” is usually seen as the basis for a civic community, but it expresses itself also along national lines that reflect a particular culture or ethnicity. A purely statist approach is artificial and can arbitrarily allocate territory to peoples who do not wish to live together: “it is for the people to determine the destiny of the territory and not the territory the destiny of the people.”[68]

These three broad views are not necessarily mutually exclusive and draw from the notions elaborated in the context of the French and American Revolutions: self-determination arises at the international level only in limited cases of oppression or domination, external in case of colonialism or foreign occupation, internal in case the government discriminates according to race or religion.[69] The statist view allows for the ethnic view to come into play in extreme cases of oppression on ethnic grounds, linking external and internal self-determination.[70]

Internal Self-Determination and Minority Group Rights

The distinction between internal and external self-determination has been developed by a number of scholars, national judges and international bodies.[71] Self-determination involves the recognition of the “rights of persons belonging to ethnic groups … to play their part in the government of the country of which they are citizens,” but not “a general right of peoples unilaterally to declare secession from a state.”[72]

Relying on the 1970 United Nations Declaration on friendly relations and the views of the Human Rights Committee (in charge of implementing the Covenant on Civil and Political Rights), Thornberry sees self-determination as tied to overall respect for human rights of any given population.[73] Thornberry sees “self-determination and minority rights [as] two sides of the same coin.[74] This is consistent with the United Nations Declarations, which provide three broad options to implement self-determination: secession, free association and integration. UN General Assembly Resolution 1541 (XV) defines free association with an independent state, integration into an independent state or independence as the three legitimate options of full self-government.[75] Minority rights thus represent a compromise between separation and integration.[76]

Self-determination can thus be connected to the wider human rights framework; the United Nations Vienna Declaration of 1993, in fact, makes this connection.[77] First, self-determination is meant to protect the rights of groups against oppression. Second, self-determination is considered a condition for the protection of individual rights. Third, it is a universal requirement: the Human Rights Committee calls on all states to implement this right. McCorquodale proposes to see self-determination as a human right, which has to be balanced with other rights or interests, such as international peace and stability.[78] Franck goes further by showing the emergence of a “general right to democratic governance.”[79]

Internal self-determination becomes a way to combine two essential principles: self-determination and territorial integrity.[80] It can also be a way—by responding to grievances from groups within a given state—to ensure that demands for corrective justice do not arise, or receive some sort of response. This link between corrective justice and self-determination is elaborated upon by Brilmayer.

Conclusion

For all its lack of clarity, self-determination is now established as a universal norm. It both legitimizes and undermines state sovereignty. Despite (and probably because of) its imprecision and malleability, this concept allows a permanent questioning of state sovereignty, just as democracy allows a permanent questioning of government policies. As a result, although the state remains the cornerstone in the allocation of power, it needs to take into account demands from below (non-state groups) and from above (international institutions).

The possibility to derive a consistent set of international rules from the self-determination principle is questionable, given the dynamics of self-determination, which tend to encourage divisions within political entities. The inconsistencies of the current international framework are obvious and include the following: lack of access for minorities (dichotomy between self-determination and minority rights), lack of universal application, predominance of state sovereignty and absence of implementing mechanisms.[81]

The discussion between proponents and opponents of a wide definition of self-determination is certainly misplaced insofar as it opposes sovereignty and self-determination. As Murswieck states, “The principle of sovereignty alone cannot be used as an argument against the right of self determination… the question is: which principle is in which way limited by the other?[82] In the same way, democracy and nationalism should not be seen as opposed polarities. Self-determination should be seen rather as a way to reconcile both.[83] In other words, legitimate expressions of particular identities should be recognized, as long as they are based on a democratic will and take into account others’ rights (in particular that of existing states and institutional arrangements). Just as unrestricted individual freedom leads to anarchy, unrestrained application of self-determination could lead to chaos.[84]

French and American Revolutions have established a link between individual human rights and self-determination that is still relevant today. On the one hand, self-determination is the logical result of the recognition of individual civil and political rights through democratic deliberation (consent) and free choice. On the other hand, human rights define the articulation between internal and external aspects of self-determination: secession becomes legitimate in cases of oppression. As we have seen, there are some indications that self-determination is evolving in the direction of a right of self-government for minority groups and to a democratic form of government.

Self-determination serves to create the conditions, however fragile, to establish the state. According to Gellner, “it is nationalism which engenders nations, and not the other way round.”[85] But this does not solve the issue of who the “peoples” entitled to self-determination are, the problem of the artificial borders of many states and the issue of what can constitute a civic social pact in increasingly diverse states.[86]

Notes & References

  1. James Crawford, “The Criteria for Statehood in International Law,” British Year Book of International Law 48 (1978): 111–43.
  2. David Raic, Statehood and the Law of Self-Determination (The Hague: Kluwer Law International, 2002), 25–28; Crawford, 1978, 108.
  3. Christian Tomuschat, Modern Law of Self-Determination (Dordrecht: Martinus Nijhoff Publishers, 1993), 9.
  4. Martti Koskenniemi, “National Self-Determination Today: Problems of Legal Theory and Practice,” International and Comparative Law Quarterly 43, no. 2 (1994): 248.
  5. Tomuschat, 11.
  6. Jean-Jacques Rousseau, Du Contrat Social (Paris: Flammarion, 1762), 19–20. Edition consulted: published 2001, with an introduction by Bruno Bernardi.
  7. Ibid., 58 and 65.
  8. Ibid., 59.
  9. Ibid., 57.
  10. Ibid., 66 and 69.
  11. Ibid., 66.
  12. Ibid., 73.
  13. Ibid., 92–94 and 117–22.
  14. Ibid., 94.
  15. Ibid., 134–35.
  16. Ibid., 136–39.
  17. Marcel Gauchet, La Révolution des Droits de l’Homme (Paris: Gallimard, 1989), 16–19.
  18. Ibid., 44–5.
  19. Ibid., 58–59 and 108–10.
  20. Official translation of the Declaration of the Rights of Man and the Citizen of 1789, available at http://www.elysee.fr/elysee/elysee.fr/anglais/the_institutions/founding_texts/the_declaration_of_the_ human_rights/the_declaration_of_the_human_rights.20240.html, accessed 16 April 2007.
  21. Gauchet, 48.
  22. Ibid., 72–73 and 78–79.
  23. Ibid., 84–85.
  24. Ibid., 138–41 and Rousseau, 146–47.
  25. Chimene I. Keitner, “National Self-Determination in Historical Perspective: The Legacy of the French Revolution for Today’s Debates,” International Studies Review 2, no. 3 (2000): 3–26. See also Van Dyke in Will Kymlicka, The Rights of Minority Cultures (Oxford: Oxford University Press, 1995), 33–37.
  26. United States Declaration of Independence, United States National Archives, available at http://www.archives.gov/national-archives-experience/charters/declaration_transcript.html, accessed 16 April 2007.
  27. Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Cambridge: Cambridge University Press, 1995), 11–13.
  28. A number of authors have underlined this genealogy, in particular Cassese; Thomas D. Musgrave, Self-Determination and National Minorities (Oxford: Oxford University Press, 2000), 2–14; Joshua Castellino, International Law and Self-Determination (The Hague: Martinus Nijhoff, 2000), 7–13; and Raic, 172–75.
  29. Citation from Talleyrand, foreign minister to Napoleon; see Allott in Tomuschat, 192.
  30. Both “people” and “nation” are used here as synonymous, with the nuance that “nation” has a more political overtone. Miller said a nation is “a community of people with an aspiration to be politically self-determining” (Keitner, 4). Gellner’s definition of nationalism as a “political principle which holds that the political and national unit should be congruent” (Gellner, 1) is an approximate definition of the people’s right to self-determination.
  31. See Article 21.3 of the Universal Declaration of Human Rights, adopted 10 December 1948, UNGA Res 217 A (III).
  32. James E. Falkowski, “Secessionary Self-Determination: A Jeffersonian Perspective,” Boston University International Law Journal 9 (1978): 220; Hurst Hannum, “Rethinking Self Determination,” Virginia Journal of International Law 34 (1994): 7.
  33. Leo Gross, “The Peace of Westphalia, 1648–1948,” American Journal of International Law 42 (1948): 21–23; Keitner, 6. See text of the Treaty of Westphalia, Avalon Project, Yale Law School, available at http://www.yale.edu/lawweb/avalon/westphal.htm, accessed 17 April 2007. See Articles CXXIII and CXXIV of the Treaty of Westphalia.
  34. Immanuel Kant, Perpetual Peace and Other Essays, translated and with an introduction by Ted Humphrey (Indianapolis, IN: Hackett, 1983), 34–35 and 117.
  35. Ibid., 116–17.
  36. Ibid., 109.
  37. Ibid., 113.
  38. Crawford, 1978, 111–43.
  39. Nathaniel Berman, “Sovereignty in Abeyance: Self-Determination and International Law,” Wisconsin International Law Journal 7 (1988): 52–53.
  40. See “Fourteen Points” speech delivered by President Wilson before the US Congress in January 1918, available at http://usinfo.state.gov/usa/infousa/facts/democrac/51.htm, accessed 17 April 2007.
  41. Nathaniel Berman, “‘But the Alternative is Despair’: European Nationalism and the Modernist Renewal of International Law,” Harvard Law Review 106 (1993): 1859–61.
  42. Berman, 1988 and Martti Koskenniemi, “National Self-Determination Today: Problems of Legal Theory and Practice,” International and Comparative Law Quarterly 43, no. 2 (1994): 254.
  43. Berman, 1993, 1864–65.
  44. Berman, 1988, 58.
  45. Ibid., 75.
  46. Rosas in Tomuschat, 249, emphasis in the original; see also Markku Suksi, “Keeping the Lid on the Secession Kettle—A Review of Legal Interpretations Concerning Claims of Self-Determination by Minority Populations,” International Journal on Minority and Group Rights 12 (2005): 201–02.
  47. Berman, 1988, 64.
  48. Ibid., 88.
  49. Hannum, 10–11.
  50. Berman, 1993, 1867.
  51. Based on, in particular, United Nations General Assembly resolutions adopted on 14 December 1960: Declaration on the Granting of Independence to Colonial Countries and Peoples (GA Res. 1514 (XV), 15 GAOR (1960) Supplement no. 16 (A/4684), 66–67) and the resolution defining the options for self-government (GA Res. 1541 (XV), 15 GAOR (1960) Supplement no. 16 (A/4684), 29–30). See also Musgrave, 149–51; Hannum, 31; Karen Knop, Diversity and Self-Determination in International Law (Cambridge: Cambridge University Press, 2002), 51–54.
  52. Judgment: ICJ Reports (1986): 565, paragraphs 20, 25 and 567.
  53. For a detailed discussion on these issues, see Berman, 1993.
  54. Berman, 1993, 1863 and 1870.
  55. Crawford, in Philip Alston, People’s Rights (Oxford: Oxford University Press, 2001), 38.
  56. Ibid., 66.
  57. This expression is based on Hannum, 35.
  58. Guyora Binder, “The Case for Self-Determination,” Stanford Journal of International Law 29 (1993): 224; emphasis in original. Binder opposes “universalist and nationalist components of self-determination.” Article 1 of the International Covenant on Civil and Political Rights; Cassese, 59–62; Robert McCorquodale, “Self Determination: A Human Rights Approach,” International and Comparative Law Quarterly 43 (1994): 860–63; Crawford, 2001, 27.
  59. Cassese, 49; see Ofuatey-Kodjoe in Knop, 65.
  60. Hannum, 19; Musgrave, 148–49; Cassese, 59–60; Crawford, 2001, 64.
  61. GA Res. 2625 (XXV), 25 GAOR (1970) Supplement no. 28 (A/8028), 12–14.
  62. Ibid.; see also Cassese, 109–20, and Musgrave, 151–54.
  63. Musgrave, 154–67; see also reference to the Quebec secession case in Knop, 53.
  64. Hannum, 35, and Berman, 1988, 92.
  65. Knop, 55–57.
  66. See uti possidetis principle mentioned above.
  67. Castellino, 392.
  68. Judge Dillard in Western Sahara case (International Court of Justice, 1975), cited in Cassese, 189.
  69. Crawford, 2001, 63–66; see also Crawford, 1978, 162–46 with regard to the case of Rhodesia.
  70. Cassese, 120, and McCorquodale, 860–3.
  71. See Cassese; Quebec secession case cited in James J. Summers, “The Right of Self-Determination and Nationalism in International Law,” International Journal on Minority and Group Rights 12 (2005): 325–54; and Committee on the Elimination of Racial Discrimination (CERD), General Recommendation no. 21: Right to self-determination (23/08/1996) A/51/18, Annex VIII A, 125–26.
  72. Ibid.; my emphasis.
  73. Human Rights Committee, General Comment 12: The right to self-determination of peoples (Article 1), 13/03/84, 39 GAOR (1984), Supplement no. 40 (A/39/40); Patrick Thornberry, “Self-Determination, Minorities, Human Rights: A Review of International Instruments,” International and Comparative Law Quarterly 38 (1989): 867–81; Tomuschat, 112–13 and McCorquodale.
  74. Thornberry, 867.
  75. GA Res. 1541 (XV) 15 GAOR (1960) Supplement no. 16 (A/4684), 29-30. See also the 1970 “Friendly Relations” resolution (GA Res. 2625 (XXV), 25 GAOR (1970) Supplement no. 28 (A/8028), 12–14).
  76. Berman, 1993, 1865; see Aaland Islands case report of the International Commission of Jurists.
  77. United Nations World Conference on Human Rights, Vienna Declaration and Programme of Action, A/CONF.157/23 (12 July 1993); Human Rights Committee, General Comment 12: The right to self-determination of peoples (Article 1); McCorquodale, 860; Knop, 80– 82.
  78. McCorquodale, 875–83.
  79. Thomas M. Franck, “The Emerging Right to Democratic Governance,” American Journal of International Law 86, no. 1 (1992): 46–91; Cassese, 302–12 and 346–48.
  80. Frederic L. Kirgis Jr., “The Degrees of Self-Determination in the United Nations Era,” American Journal of International Law 88 (1994): 304–10.
  81. Cassese, 327–65.
  82. Tomuschat, 25 and 35; emphasis in original.
  83. Ibid., 105–06.
  84. See Eleanor Roosevelt, cited in Cassese, 318.
  85. Ernest Gellner, Nations and Nationalism, 2nd ed. (Oxford: Blackwell, 2006), 54.
  86. Crawford, 2001, 26.
VINCENT DEPAIGNE is presently an administrator at the European Commission in Brussels, where he works for the Indonesia Desk, Asia Directorate, in the External Relations department. He has previously worked for the Desk for Lebanon and Jordan, for the Political Desk for Asia Europe Meetings and the ASEAN Regional Forum, and as Counsellor at the European Commission in Beirut. He is currently a Ph.D. candidate in law at the School of Oriental and African Studies (SOAS), University of London. He holds an M.St. in international human rights law from the University of Oxford, as well as degrees from the Institute of Political Studies in Paris (Sciences Po) and University of Paris I. His future projects include research on the interaction between individual, cultural and group rights under international human rights law.