The Self-Determination of Peoples in European Legal Practice
| Author | Anthony Whelan |
| Published date | 01 March 1996 |
| Date | 01 March 1996 |
| DOI | http://doi.org/10.1177/1023263X9600300102 |
| Subject Matter | Article |
Anthony Whelan *
The Self-Determination of Peoples in European Legal
Practice 1
§1. Introduction
The rallying-cry of liberty has been heard throughout the former eastern bloc in the last
seven years, as the failing hegemony of the Soviet Union and of communist ideology
has been challenged and ultimately (and speedily) demolished. This article is concerned
with an idea
of
liberty which has since gained sway in much of central and eastern
Europe: the principle
of
the self-determination of peoples. Fuelled in part, very likely,
by different communities' desire to husband limited resources for themselves, the
struggle for self-determination
of
such communities is probably traceable also to deeper
historical factors. Communist ideology, whose legacy is economic collapse and the
heightened competitiveness and mutual distrust of those who subsist in its ruins, was in
the eyes
of
many only part of the motive for their oppression; this was also attributed
in part to the drive of old-fashioned Russian or Serbian imperialists or nationalists for
regional hegemony over their neighbours. The developments in the east have therefore
encompassed two types of revolution, two different and sometimes incompatible
struggles for liberty - social revolution to emancipate the individual from collectivism,
and national revolution to emancipate peoples from alien rule and to reclaim a sense
of
national identity.
*Referenduire at the Court of Justice of the European Communities, and Lecturer in Law at Trinity
College, Dublin.
I. This essay is a revised and updated version of a piece first published in A. Whelan (ed.), Law and
Liberty in Ireland, (Oak Tree Press, 1993). I am indebted to Paddy Dillon-Malone of the Venice
Commission for Democracy through Law for his assistance in researching human rights issues in the
former Soviet bloc and minority rights developments; to Brendan Simms, of Peterhouse,Cambridge,
for his invaluable insights on the Yugoslav crisis; and to Joxerramon Bengoetxea of the Court of
Justice for his helpful comments. Responsibility for errors remains, of course, my own. All views
expressed are strictly personal.
MJ 3 (1996) 5
I
The
Self-Determination of Peoples in European Legal Practice
The pursuit of national self-determination is reflected both in the break-up of existing
States and the formation of new ones, and in the internal organization and external
relations of virtually all the States in the region. These processes are examined in this
article. Particular regard is had to the development of European norms (often through
European Political Cooperation, or the Common Foreign and Security Policy of the
European Union) on the dissolution and establishment of States, and to national constitu-
tional provisions and international instruments which affect minorities.
§2. Rival Conceptions of Self-Determination
Conceptions of the self-determination of peoples tend to differ along a number of related
fault-lines, chiefly by reference to the distinction between internal and external self-
determination, and to the distinction between what can be termed political and cultural
criteria of 'peoplehood'.
The distinction between internal and external self-determination arises from the choice
as to whether a particular people (however defined) should seek to determine itsdestiny
within an existing political and territorial unit, or should, in the alternative, break away
to form a new unit in which the accoutrements of a sovereign State give it greater
apparent control over its affairs. 2International law, as a State-centric body of norms,
has historically been unsympathetic to secession. However, the State-centric character
of international society has meant that the protection and remedies afforded by interna-
tional law to oppressed communities within States has been weak, and has tended to
increase the attractiveness of State-formation for such communities. 3The process of
decolonization in Africa and parts of Asia resulted in the widespread exercise of exter-
nal self-determination by former colonial administrative units, which became States.
This was long seen as an extensive exception to the primacy which had been accorded
to the territorial integrity of States, and thus to internal models of self-determination,
after the break-up of European empires following the First World War. A model of
internal autonomy was used to resolve the problem of Finland's Aaland Islands, while
minority rights provisions were written into the treaties establishing a number of new
States in central and eastern Europe. 4
2. It may be better to think of a continuum of possible solutions to problems relating tu identity and self-,
governance. from formal equality and participatory democracy. through cultural rights. territorial
autonomy, and full independence. rather than of a strict dichotomy forced by the central importance
uf Statehoud in international life.
3. See generally G. Gottlieb, Nation against State:A new approach
til
ethnic conflicts and the decline
of
sovereignty, (Council on Foreign Relations Press, 1993).
4. It may even be the case that some of these guarantees remain in force: as regards the Treaty
of
SI.
Germain, see the ruling of 13 September
19'J3
of the International Court of Justice in Bosnia-
Herzegovina v Yugoslavia (Serbia and Montenegro), Second request for indications
of
provisional
measures, ICJ Rep (1993), 325.
6 MJ 3 (1996)
To continue reading
Request your trial