LJIL Symposium: A Response to Professor Brad R. Roth on (Empty?) Promises of Self-Determination

by Zoran Oklopcic

[Zoran Oklopcic is an Associate Professor of International Law at Carleton University in Canada. He focuses on self-determination, popular sovereignty in theory of constitutional law and on the theories of secession and territorial rights]

I am grateful to Professor Brad Roth for engaging with my article, “Beyond Empty, Conservative, and Ethereal:  Pluralist Self-Determination and a Peripheral Political Imaginary”. In his response, Roth embraces my understanding of his account of self-determination as “emptied” of normative content, and, in fact, insists on rejecting projects that would seek to give it a more precise normative meaning.

In other words, it is less so that my argument misses the target, than that his ‘emptied’ understanding of self-determination is robust enough to sustain a political critique. I say ‘political’, because the norm of self-determination is not just an object of legal exegesis; its understanding, perhaps more than any other norm of international law, betrays a particular political vision, not only of state-formation, but of the political ordering of the world as well.

My project was not to offer a new jurisprudential reading of self-determination, nor to insist that the accommodation of nationalist pluralism must be reintroduced as part of “external” self-determination’s promise. In reading Roth’s, Cohen’s and Krisch’s recent contributions primarily as political theories of pluralism with an emancipatory promise, I was more interested to argue that global pluralist commitments have, in the past, been accompanied by global or regional political visions that have sustained them, and which have provided space for the recognition and accommodation of ethnocultural pluralism. For example, demands for the accommodation of national or racial diversity in some cases, such as in French West Africa in the 1950s, initially took the form not of external self-determination, but rather of the wholesale constitutional transformation of transcontinental empires, in a way in which it would have increased, if successful, the political stake of the imperial ‘periphery’ in the constitutional affairs of the metropole.

I hasten to add that from a doctrinal point of view, there is little to disagree with Roth. Roth is, I am convinced, right to treat the Badinter Opinions as an “improvisation” aimed at addressing an urgent political contingency, and not as correct application of the uti possidetis and self-determination principles in post-Cold War settings. He is also right, as he argues in his recent book, that cases such as Kosovo “bespeak[] the ad hoc nature of the international order’s solutions” to self-determination conflicts around the world.

But, in the structure of his overarching argument, the doctrinal interpretation of self-determination is only one argument against a more normatively generous understanding of self-determination in the post-colonial context. Roth’s insistence on the combination of the principle of effectivity and non-intervention, as the politically appropriate international legal response to secessionist demands, can still be challenged on two accounts: conceptual and prescriptive.

On the one hand, I wish to take issue with the claim that it is impossible to discern—even if it may undesirable to prescribe—any normative ideals concealed in the idea of self-determination. In his response, Roth claims for instance that “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, … the all-important ‘majority of whom?’ question.” In my opinion, this is not quite the case: from the fact that such an imposition may be self-serving and responsive to the gamut of strategic and moral imperatives, it doesn’t follow that it cannot begin to approximate an enduring normative ideal concealed in the idea of self-determination. Elsewhere I have argued that the invocation of “the people of” simultaneously includes, yet conceals, the aspiration to create a polity that will maximize the number of individuals who can claim allegiance to a new state. International law hasn’t fully owned up to the fact that the aggregate degree of consent over the entirety of a territorially reconfigured territory, improved either through direct redrawing of boundaries, such as after the First World War, or implicitly through the will of a “territorial”, uti possidetis-delineated “people”, as in the decolonization period, remains the silver lining that unites radically different understandings of self-determination. If this is indeed true, we can claim that self-determination, while remaining in many respects “underdetermined”, has always encapsulated, while often concealing, an important commitment to the maximization of aggregate political allegiance. International law, preoccupied with avoiding vacuum juris understandably doesn’t acknowledge this underlying ideal: doing so would legitimize a possible political stalemate in the pursuit of more finely-tuned, often meandering boundaries, enclaves, and discontiguous territories of nascent states. Irrespective of that, insisting on a hidden, ineradicable normative ideal implicit in external self-determination is important as an analytical point.

On the other hand, the prescriptive case against a richer understanding of self-determination seems to be two-fold. On the one hand, it appears that understanding self-determination as prescribing the accommodation of national or ethnocultural pluralism would, for Roth, undercut the original, and paramount promise of the post-Second World War international architecture: the respectful accommodation of ideological differences between sovereign states. What seems implicit in Roth’s argument is that non-Western, (semi-)peripheral, non-liberal democratic states would be particularly vulnerable to such an ‘enriched’ interpretation of self-determination, and might become, in the worst case, subject to political and military coercion on behalf of great powers.

It is easy to see the logic of this reasoning, but is this something we should fear in real life? The West was, for example, implicated in the early phases of the dissolution of Yugoslavia, but it was the IMF’s imposition of harsh austerity measures that exacerbated nationalist conflict. In the early phases of the Yugoslav conflict, the countries of the European Community, together with the United States, continued to be committed to the preservation of Yugoslavia, disregarding claims for national self-determination of Yugoslav constituent nations. When external actors intervened, first through Badinter “improvisation”, and then, ultimately, through military intervention, their constitutional preferences didn’t follow any predictable pattern of enabling anyone’s national self-determination: in Bosnia, they have co-instituted an almost confederal state; in Macedonia, they have declared that “there are no territorial solutions to ethnic conflict”; and, in Kosovo, they have ordained, through the Ahtisaari Plan, a weak form of ethno-territorial autonomy. Equally, in Syria, Iraq or Libya, the West has not intervened under the banner of national pluralism. If anything, Western military interventions seem to have sought first to maintain the territorial status quo, then impose functional constitutional arrangements, and, ultimately, anchor the reconstituted state firmly within the West’s political orbit. I am skeptical whether an understanding of self-determination that would, for example, explicitly demand intra-state political autonomy for national groups (as argued by Buchanan, for example) would alter the existing context-specific attitude of the West towards intervention, which appears to be more interested, in fact, to overthrow socio-political systems inimical to liberal democracy than to enable any particular nation’s self-determination.

On the other hand, Roth’s defense of ‘empty’ self-determination also relies on a consequentialist assumption that dignifying the combination of effectivity and non-intervention as a substitute for a richer account of self-determination contributes to an ultimately and comparatively less violent mode of state-formation—in comparison to a putative one, which would rely on self-determination norms prone to being exploited by self-serving external interveners, and cunning internal insurgents. But, this justification depends not on the assessments of the possible temptations such richer norm might create in the institutional vacuum. Rather it depends on the assumed unlikelihood of normative and institutional framework that might regulate the accommodation of some form of national pluralism. Ultimately, then, the argument about normative modesty of self-determination is an argument about what is realistic in the current geopolitical conjuncture.

As Roth explains in his book, his project strives towards “sound application of the most essential liberal premises about morality, in light of a sober recognition of the limitations of moral absolutes in international politics”. Interestingly, both Allen Buchanan, who develops a richer normative account of self-determination, and Jean Cohen, who embeds her account of self-determination in an ambitious program of global institutional reform, equally claim to be (more or less) realistic. For Buchanan, a remedial interpretation of external self-determination is not only feasible, but also “morally accessible”. For him, a reform of international law that would include remedial self-determination and demand the proliferation of intra-state territorial arrangements is actually “achievable without unacceptable moral costs”. Jean Cohen, whose work I also discuss in my paper, proposes in turn a far-reaching set of amendments to the United Nations Charter that would deny the veto to the ‘permanent five’ in the Security Council, yet explicitly situates her project both against “infeasible utopias” as well as “unimaginative realism”.

There are at least two ways in which we can understand the demand for realism in the context of (juridico-)political theories which seek to curb global and regional hegemonies and maintain ideological diversity. Both, in my view, are problematic. The first is simply the worry that dominant powers will not voluntarily share political power or contribute in good faith to the reform of the international legal and political order. The second, in contrast, takes the perspective of those who actually struggle against various forms of national, social or geopolitical domination. From this perspective, being ‘realistic’ is being concerned with how powerfully a proposed conceptual or normative change will capture the existing imagination of those who struggle for political and social emancipation.

My article’s intervention showcased ‘losers’: an optimistic ideologist of the Non-Aligned Movement (Kardelj), and a poet-turned-politician advocate of transcontinental multinational federalism (Senghor). For both, territorial self-determination, not necessarily as independence, is always implicated in achieving a triple, overlapping, goal: national, social and global political emancipation. It is this promise I wanted to retrieve, not make an argument against ‘emptiness’ of the legal norm of self-determination per se. Given the fortunes of its proponents, my intervention may indeed have been ‘unrealistic’. Still, I am convinced there is space for a political theory of self-determination (or its substitutes) which is not only sober, accessible, and not ‘unfeasibly utopian’—but which also exists as a risky practice of political encouragement itself.

http://opiniojuris.org/2013/11/21/ljil-symposium-response-professor-brad-r-roth-empty-promises-self-determination/

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