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

Abstract

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. On the one hand, inconsistencies and double-standards are so commonplace in international practice as to justify the doubt that the law of self-determination is, in fact, power politics in disguise. On the other 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 cases (e.g. Palestine and Western Sahara). Yet self-determination of peoples is still well entrenched in international legal life. Against this background, international lawyers have been 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. So far, however, the various attempts to overcome the colonial paradigm have not led to satisfactory results, being doomed to capitulate in the face of the fact that international practice in this field is either too sparse or is inconsistent. The main reason for this difficulty lies in the tendency to conceive of the law of self-determination in a traditional, ‘static’ fashion, as a set of clear-cut rules whose content has to be distilled, ultimately, in the light of accumulated past decisions. I will argue, by contrast, that the principle should be looked at in its ‘dynamic’ aspect, viz. as a ceaseless process through which the international community provides an authoritative response to demands for self-determination. My working hypothesis, specifically, is that a valuable contribution to such an investigation may be offered by the policy-oriented jurisprudence developed by the so-called ‘New Haven School’ of international law (NHS).