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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 controversial 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 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 ambivalence, positing the following "simple" dynamic:
[S]elf-determination is attractive so long as it has not been attained; alternatively, it is attractive...