LJIL Symposium: In Defense of a (Relatively) “Empty” Conception of Self-Determination

[Brad R. Roth is a Professor of Law at Wayne State University in Detroit, Michigan, where he teaches international law, comparative public law, and political and legal theory]

In “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary,” Zoran Oklopcic gives an enlightening account of a set of related approaches to the international norm of self-determination of peoples.  In this rendering, I have the honor of being cast as the representative of “Empty”:  that is to say, my approach to international legal pluralism “empties” the self-determination norm of the contents that might otherwise be supplied by ethno-nationalism or by “the democratic ideal of the consent of the governed.”  Although the expression had not occurred to me, I am pleased to defend – indeed, perhaps, to insist on – an “empty” conception of self-determination in preference to the alternatives on offer.

In a superficial sense, the term “self-determination” necessarily implies an emptiness as to the substance of what is determined; otherwise, the determiner would not be the “self.”  Yet on closer examination, externally-dictated substance inevitably creeps into the emptiness. The self-determination formula generally withholds judgment about what should count as legitimate public order in particular territories, but in addressing myriad local political struggles – struggles not only over what is determined, but over the delimitation of the self – it nonetheless deviates from impartiality in two ways.

First, the formula privileges a given set of boundaries, frozen in place – however arbitrarily – at the inception of the current peace and security order.  While not precluding secessionists from taking their best shot, the formula presumptively forbids external assistance to local forces challenging – but not to local forces bolstering – the existing territorial boundaries of any state or “non-self-governing territory.”  A proviso maintains that states, to warrant being shielded from external interference with their governments’ efforts to maintain territorial integrity and political unity, must be “possessed of a government representing the whole people belonging to the territory without distinction.”  Yet this proviso was originally directed against colonialism and its vestiges, not against arbitrarily-delimited territorial units nor against non-liberal-democratic governance; the proviso’s leading champions included, it should be recalled, both ethnically-incoherent post-colonial states and one-party political orders that tolerated no organized opposition.

Second, the traditional formula, while still presumptively accepting any outcome not attributable to inadmissible foreign interference, nowadays excludes respect for “internal processes” that the international community of states as a whole cannot rationalize – even by the most pluralistic criteria – as manifestations of a whole territorial population’s self-determination.  Consensus judgments to this effect do occur, sometimes overtly and sometimes by way of “the dog not barking” when local opposition forces receive external assistance.  Yet while such consensus judgments have occasionally validated external action against a manifestly illegitimate government exercising “effective control through internal processes” – the ordinary test for standing to assert rights, incur obligations, and confer immunities on behalf of a territorially-based sovereign political community – the international order has far more rarely validated externally-sponsored fracturing of the territorial units themselves.

Territories – whether of whole states or of the entities for which secession is sought – frequently lack demographic coherence (though such coherence can, as we have lately seen, be ruthlessly imposed).  However arbitrary the boundaries, settled bases for re-configuration tend to be elusive.  The widespread fear is that an international validation of secessionism would create perverse incentives for local political entrepreneurs in majority-minority regions to exacerbate ethnic conflicts, perhaps even with an eye to provoking a ruthless backlash that could then be invoked to make a case for “remedial secession.”

While an early least-common-denominator understanding of self-determination could identify “colonial domination, alien occupation, and racist (i.e., apartheid) regimes” as inimical to the principle, the overlapping consensus dissipated the moment that the issue shifted away from colonialism and its vestiges.  Suddenly, there was a putative “Congolese people,” made up of an ethnically, culturally, and linguistically diverse territorial population – not only arbitrarily delimited, but actually delimited by its enemies – that included in its midst a putative “Katangese people,” itself diverse and divided, in whose name independence was sought for the territorial unit’s most mineral-rich region.  Any external effort to resolve the issue through “the democratic ideal of the consent of the governed” would, ironically, have had to impose solutions to the issue’s central elements – including, but not limited to, the all-important “majority of whom?” question.  On such locally contentious questions, the international order has preferred to abstain, reverting by default to the inviolability of established inter-state boundaries.

What, then, are the implications of international responses to the demise of the Socialist Federal Republic of Yugoslavia (SFRY)?  Oklopcic sees that crisis through the lens of Kardelj’s Socialist-era understanding of self-determination in the Yugoslav context.  For Kardelj, “the legitimacy of Yugoslavia [was] only derivative and tentative” – a mere epiphenomenon of the socialist project that subsequently disappeared   Yet Kardelj‘s conception – however popular with his fellow Slovenes – did not have the field to itself.  More importantly, there was still less accord on the alternative.  As Oklopcic indicates, “While all Yugoslav constitutions affirmed the various nations’ right to self-determination, including the right of secession, a fundamental ambiguity remained as to whom exactly this right belonged to South-Slavic Yugoslav ethnoi, or the demoi of Yugoslavia’s component republics.”  (The distinction, while appearing to set an ethnic against a civic brand of nationalism, in reality merely determines which ethno-national aspirations will be satisfied or frustrated once secessionism seizes the agenda.)  The resulting overlap of self-determination claims underlay the Yugoslav wars of the 1990s.

Faced with the conflicting internal visions of Yugoslav self-determination, the international order reacted in an essentially ad hoc manner against the most manifestly virulent of the competing ethno-nationalisms.  In ascribing international legal status to constitutionally-established internal boundaries, the Badinter Commission gave a rationale that masked rather than highlighted its departure from existing doctrine. It did so precisely to avoid filling the “emptiness” with a substantive content on which there was, and continues to be, no broad agreement.

The Badinter judgment’s sleight-of-hand traded on a distinction, non-existent in international law, between federal and unitary domestic orders, ignoring that from the traditional external perspective, federal arrangements (however internal contestants may regard them) are contingent artefacts of processes that presuppose, rather than constitute, statehood.  Sovereign political communities bear the “inalienable right” to overthrow their constitutional orders, and constitutional discontinuity does not alter international legal personality. (Thus, in Gabcikovo-Nagymaros, it was not that democratic Hungary succeeded to the international legal obligations of communist Hungary, but that the obligations incurred by Hungary’s communist government were those of Hungary tout court.)  The international legal order is not a legal order of legal orders, but a legal order of territorially-delimited political communities that bear the sovereign capacity to revise governing arrangements through internal processes, however ragged – at worst, a right to be ruled by your own thugs and to fight your civil wars in peace.

Exceptional cases quite properly lead to qualifications of this “emptiness.”  But the exception does not swallow the rule.  Presumptively, self-determination in international law remains “open-textured” – or, if one prefers, “empty.”