Whither the Principle of Self-determination in the Post-Colonial Era? The Case for a Policy-oriented Approach

It is no secret that, since the end of decolonization, the principle of self-determination of peoples has been going through a veritable identity crisis. The terms of this crisis are well known and may be summarized as follows. On the one hand, a significant portion of the international community maintains that the principle has exhausted its historical function and applies only to a very limited number of hypotheses (e.g. Palestine). On the other hand, self-determination of peoples and its jargon are still well-entrenched in contemporary international practice. Just consider, in this respect, extensive references to the principle contained in the 2007 UN Declaration on the Rights of Indigenous Peoples, its recurring invocation by secessionist/irredentist movements (e.g. in Kosovo, Catalonia or Crimea), or the widespread recognition of Libyan and Syrian rebels as “the only legitimate representative of their people” during the Arab Spring. Against this background, international lawyers are called upon to clarify how the customary principle on self-determination has changed in order to meet the challenges posed by the new global order. Yet, although more than two decades have passed since the end of the Cold War, doctrinal debate still finds itself in a stalemate. Mainstream scholarship, in particular, tends to tackle the issue by looking at the principle of self-determination as a “rule”, whose content has been crystallized through the combination of state practice and opinio juris. Faced with current reality, however, this approach proves itself incapable of leading to satisfactory results, as state practice is a considerable distance away from the universal consensus achieved by the fight against colonialist and racist regimes. Emblematic, in this respect, are the fruitless attempts to infer from international practice a customary rule entitling national minorities and indigenous peoples to “remedial secession”. In our opinion, the main problem with the traditional view lies in its failure to consider that the principle at hand is inherently indeterminate, lending itself to a wide variety of constructions. The same equation “self-determination = decolonization”, indeed, was anything but foregone in the aftermath of the birth of the UN. Now as then, hence, a policy-oriented choice is required in order to draw concrete precepts from that principle. This inevitably ushers in a string of questions. Who takes part in such a decision-making process? How is the latter carried out? What substantive principles (if any) direct the choices of relevant decision-maker(s)? Our working hypothesis is that, in the quest for a solution to these (and related) queries, a valuable contribution may be offered by the policy-oriented jurisprudence of the New Haven School (NHS). In the landscape of international legal theory, indeed, NHS stands out precisely for its focus on the dynamics of the law-making “process”, rather than on “rules” as stabilized through the accumulation of past decisions. Shifting the focus onto the processes which make and implement the law of self-determination would be beneficial in many respects. First, a more in-depth analysis of such processes would allow bringing to the limelight the role played by non-state entities which, while not enjoying formal status of international subjects, have a non-negligible say in self-determination processes. We refer, in particular, to political parties and insurrectional groups whose patterns of self-identification represent an inescapable point of reference in defining the “self” in self-determination claims. Second (and relatedly), the dissection of the decision-making process carried out by NHS provides a workable cognitive grid which will help us to clarify the allocation of competences among international and regional actors in handling self-determination issues. Third, by questioning the “sanctity” of past trends, the NHS’ approach frees the principle of self-determination from the “chains” of its glorious (but fundamentally outdated) anti-colonialist past and paves the way for an overall rethinking of what constitutes today a legitimate self-determination claim. Fourth and finally, since it is strongly committed to normative values (which may be summed up with the binomial “peace and human dignity”), NHS’ jurisprudence – contrary to what it is commonly believed – does not equate international law with the will of superpowers, but provides a critical theoretical framework through which powerful states’ behavior may be discussed and scrutinized. In the light of the above, our paper will try to highlight the benefits stemming from an investigation of the principle of self-determination in a NHS perspective. On the basis of the analysis of selected case studies, in particular, it aims to demonstrate that such an approach could be particularly useful both to understand how self-determination works in practice and to formulate sound predictions on the outcomes of self-determination processes.