The Theory of Self-Determination, Fernando R. Tesón, ed.

| December 8, 2017
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The Theory of Self-Determination, Fernando R. Tesón, ed. (Cambridge: Cambridge University Press, 2016), 256 pp., $110 cloth, $34.99 paper.

This volume brings together international lawyers and philosophers to debate the right to self-determination. While self-determination is a central organizing principle of our international system—recognized in the UN Charter, Article 1 of both human rights covenants, and a number of other important legal documents—it has proven enduringly difficult to theorize. Among the many questions it faces are: How do we define the “self?” What groups count as “peoples” with a right to self-determination? What does the right of self-determination allow those groups to do, precisely? Does it allow unilateral secession? Remedial secession in the face of injustice or persecution? Internal autonomy? Does self-determination require democratic governance, or is it compatible with nondemocratic institutions? How does it cohere with other international legal principles, such as territorial integrity? Does self-determination apply only to overseas colonies, or also to internal minorities and indigenous peoples?

The collection engages all these questions, and it includes essays from skeptics of self-determination as well as proponents. Following Joseph Raz and Avishai Margalit’s well-known moral justification for the right of national self-determination, Christopher Morris holds that there is a “pretty good case” for such a right, on grounds that the prosperity of national groups is important for their members. Jens Ohlin agrees, arguing that self-determination is an expression of a more fundamental “right to exist” that belongs to nations or peoples. Others are more skeptical: John Morss claims that the concept of self-determination has “outlived its usefulness in international law” (p. 184). Matthew Lister worries that—at least where it takes the form of secession—self-determination may incentivize population transfers, and that theories are incomplete without a mechanism for dealing with such transfers. Frédéric Mégret is more moderate, arguing that self-determination is not an inherent right, but one that is earned. Groups will have a right to self-determination where they meet certain criteria of good behavior, including recognizing the rights of minorities and outsiders, and working through existing political channels for the satisfaction of their demands.

Both Patrick Macklem and Elizabeth Rodríguez-Santiago present careful overviews of the history of self-determination in international law. Rodríguez-Santiago traces the evolution of the concept, beginning with early modern defenses of indigenous property and sovereignty in the New World, through the American and French revolutions (which she says “set the origins of the modern principle of internal self-determination,” p. 205), and then moving to the more well-known Wilsonian period, the UN Charter, and decolonization, before ending with present day jurisprudence on the issue.

Macklem offers an intriguing new reading of self-determination’s purpose—as a distributive principle regulating sovereign power in the international system—and focuses on what he sees as self-determination’s three key conceptual transformations. First, around the Paris Peace Conference of 1919, self-determination changed from a right of noninterference on the part of existing states to a right held by populations not necessarily contained within existing boundaries. Second, in the decolonization era, self-determination moved from an abstract legal principle to a right. Finally, in the contemporary age, Macklem argues that self-determination is increasingly applied to domestic constitutional arrangements to mandate internal autonomy for minorities.

Several of the papers address the 2010 International Court of Justice opinion on Kosovo’s declaration of independence from Serbia. Many people expected the Court to clarify the international law of self-determination by specifying whether the right entitled Kosovo to secede unilaterally. Instead, the Court issued a narrow opinion that refused to address the self-determination issue, and limited itself to the technical question of whether declarations of independence are illegal under international law (it held they are not).

Several authors, including Tesón, Morss, and Rodríguez-Santiago, worry that this renders self-determination a matter of the successful use of force, effectively undermining international law in this domain. Michael Blake, however, offers a philosophical defense of the Kosovo decision, arguing that there may be cases in which a separatist movement is morally at liberty to attempt secession, while the state is also morally at liberty to resist. This will be the case, he suggests, where the state, though not fully just, is legitimate—that is, it imposes a duty to comply with its commands—and the secessionist group is working to set up a more just jurisdictional unit outside its authority. Here, both parties have conflicting moral liberties. On Blake’s reading, the Court’s opinion may simply reflect a messy moral reality.

Finally, the volume contains two noteworthy philosophical theories of collective self-determination. Drawing on recent work on group agency, Bas van der Vossen holds that groups can develop “emergent norms”—not reducible to the beliefs of individual members—that can provide a basis for their interaction and cooperation in the face of moral disagreement. It can make sense for people to value the process by which their group norms come about, and to desire outsiders’ respect for that process. But van der Vossen holds that this is only the case when membership in a group involves some quasi-voluntary expression of norm acceptance. Since citizenship in a state is not sufficiently voluntary, the state does not satisfy the conditions for collective self-determination. Although he agrees that it is a morally important and coherent concept, van der Vossen argues that self-determination does not apply in the context of state formation, where it is most often invoked.

Alan Patten offers a defense of the right to self-determination for national minorities, holding that self-determination is not simply a right to a democratic process on the part of citizens of a state but also includes a boundary condition: internal political boundaries should be drawn so as to empower sociocultural nations to shape their own affairs. He is careful to argue only for a right to internal autonomy, not to a nation-state.

Several of the volume’s contributors—including Mégret, Rodríguez-Santiago, and van der Vossen—offer theories of self-determination that do not depend on cultural distinctiveness. In my view, this is a welcome move. Traditionally, nations—groups defined by shared cultural characteristics—have been thought to be bearers of self-determination rights. But “peoples” are not always marked out by shared characteristics; instead, they are often defined simply by a willingness to engage in political cooperation together. Groups that cooperate to sustain a multinational state—such as Belgium, Canada, and India—count as self-determining “peoples,” though they would not qualify as national cultures. Internal minorities that share an ideology or distinctive political preferences may likewise qualify. It is therefore useful to theorize self-determination as a political claim rather than a cultural one, and I hope to see more work that builds on this approach.

Overall, this volume is a welcome contribution to the debate about self-determination that will be of interest to many readers, especially political theorists working on nationalism, global justice, and state authority, as well as international lawyers interested in secession. By placing philosophers and lawyers in dialogue, it enhances our understanding of the normative issues surrounding this topic, and it achieves a distinctively interdisciplinary tone.

—Anna Stilz

 

Anna Stilz is Laurance S. Rockefeller Professor of Politics and Human Values at Princeton University.

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Category: Book Review, Issue 31.4

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