Description
When can a group legitimately form its own state? Under international law, some groups can but others cannot. But the standard is unclear, and traditional legal analysis has failed to elucidate it. In The Theory of Self-Determination, leading scholars chart new territory in our theoretical conception of self-determination. Drawing from diverse scholarship in international law, philosophy, and political science, they attempt to move beyond the prevailing nationalist conceptions of group definition. At issue are such universal questions as: when does a group qualify as a 'people'? Does history matter? Or is it a question of ethnic status? Are these matters properly solved by popular vote? Anchored in modern analytical political philosophy but with implications for a wide range of scholarship, this volume will prove essential for scholars and practitioners of international law, global justice, and international relations.
Chapter
1 Self-Determination and Moral Variation
1. Desiderata for a Theory of Self-Determination
2. The Possibility of Collective Self-Determination
3. The Value of Group Self-Determination
4. Self-Determination in Political States
2 The Case for National Self-Determination
1. National Self-Determination
3 The Right to Self-Determination: Earned, Not Inherent
1. A Brief Overview and Critique of the Positive International Law of Self-Determination
2. The Importance of the ‘‘Self’’ in ‘‘Self-Determination’’: What/Who is ‘‘a People’’?
3. Peoples Deserving of Self-Determination
4 The Right to Exist and the Right to Resist
1. The Problem of Definition
5 Self-Determination in Three Movements
6 Self-Determination for National Minorities
1. Conceptions of Self-Determination
2. A Moderate Version of the Nationalist Conception
3. Subject Populations and Indigenous Peoples
4. Conceptualizing National Minorities
5. The Value of Self-Government
6. Justice and Self-Determination
7. Institutionalizing National Self-Determination
7 Self-Determination, Dissent, and the Problem of Population Transfers
2. What Are ‘‘Population Transfers,’’ and Why Should Theorists of Self-Determination and Secession Address Them?
3. Approaches to Secession
4. Primary Rights Accounts of Secession
5. Remedial Rights Only Accounts of Secession
8 Civil Disobedience, Dirty Hands, and Secession
1. Secessionist Declarations and the Rule of Recognition
2. Civil Disobedience and Secessionist Disobedience
3. Dirty Hands, Secession, and the Courts
9 “Mars for the Martians”?: On the Obsolescence of Self-Determination
2. Kosovo and Other Questions
3. Conclusions and Counterarguments
10 The Evolution of Self-Determination of Peoples in International Law
2. Self-Determination before the Twentieth Century
2.1 The Rights of Indigenous Peoples under Natural Law
2.2 The Rights of Peoples Living inside the Civilized Nations
2.3 The French Revolution as an Exercise of Self-Determination
2.4 The American and Latin American Independences as Exercises of Remedial Secession
2.5 The Reinforcement of the Westphalian System after the Independences in America
2.6 The Progressive Doctrines of the Nineteenth Century
3. Self-Determination between the Two World Wars
3.1 Wilson’s Doctrine during the First World War
3.2 The League of Nations and the Mandates System
3.3 The League of Nations and the Aaland Islands case
3.4 The League of Nations and the Eastern Carelia Case
4. Self-Determination after the Creation of the United Nations
4.1 Article 1 of the UN Charter
4.2 The Colonial Peoples and the UN Charter
4.3 The General Assembly Resolutions and the Development of Customary Law
4.4 The Right of Self-Determination in Treaty Law
5. Self-Determination in the ICJ Jurisprudence
5.1 The Namibia Opinion and the Retroactive Interpretation of the Mandates System
5.2 The Western Sahara Case and the Normative Value of GA Resolution 1514 (XV)
5.3 The East Timor Case and the erga omnes Character of the Right to Self-Determination
5.4 The Palestinian Wall Case and the jus cogens Status of Self-Determination
6. The Kosovo Case and a Legacy of Confusion
6.1 The Court’s Refusal to Apply Self-Determination
6.2 The Apparent Permissibility of All Unilateral Separations
6.3 The Disregard for the Principle of Territorial Integrity
7. The Post-Kosovo Era and Self-Determination as an Entitlement for Secession
7.1 Self-Determination and Remedial Secession
7.2 Self-Determination and Secession in General
8. The Right to Sociability and the Future of Self-Determination
8.1 The End of the Ethnicity Criteria
8.2 Collective Identity in the Postmodern Era
8.3 The Right of Sociability outside the Frontiers of the State
The Theory of Self-Determination
( ASIL Studies in International Legal Theory )
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