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Populus Interruptus: Self-Determination, the Independence of Kosovo, and the Vocabulary of Peoplehood

Published online by Cambridge University Press:  28 October 2009

ZORAN OKLOPCIC
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Abstract

This article uses the contested independence of Kosovo as an opportunity to re-examine the theoretical imagery behind the concept of self-determination, and then confront those findings with the more recent approaches to polity formation from other theoretical genres: normative theories of secession, on the one hand, and the global governance approach to self-determination, on the other. What emerges from the encounter between these bodies of thought is not a new interpretation, or a theory of self-determination and its relationship to uti possidetis, but rather a plea for an approach to polity formation which is simultaneously critical and prudential. That is, an approach which would accept the role of external actors as inevitable, but goes further and unmasks them as complicit in labelling certain projects as ‘civic’ and ‘multicultural’ on the one hand and ‘ethno-nationalist’ on the other. Equally, the proposed approach reveals the ever-present aspiration to unanimity as a concealed ideal of polity formation, shared by both the ‘civic’ and the ‘ethnic’ variants of self-determination. Finally, this approach to polity formation sketches the contours of an alternative, thin vision of a political community – one not wearing the badge of peoplehood – one glued together not by normative imperatives of participation and solidarity, but rather by the acknowledgement of geopolitical fiat.

Keywords

HobbesKosovopouvoir constituantRousseausecessionself-determinationunanimity
Type
ARTICLES
Information
Leiden Journal of International Law , Volume 22 , Issue 4 , December 2009 , pp. 677 - 702
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2009

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References

1 Declaration of Independence, 17 February 2008, www.assembly-kosova.org/common/docs/Dek_Pav_e.pdf.

2 Prime Minister's Speech on Independence Day, Republic of Kosovo Assembly, available at www.assembly-kosova.org/?krye=news&newsid=1639&faq=1&lang=en.

3 US Department of State, ‘US Recognizes Kosovo as Independent State’, available at www.state.gov/secretary/rm/2008/02/100973.htm (emphasis added).

4 ‘Albania Recognizes Kosovo’, Balkan Insight, 19 February 2008, available at www.balkaninsight.com/en/main/news/8009/.

5 See generally P. Radan, The Break-Up of Yugoslavia and International Law (2002).

6 I. Jennings, The Approach to Self-Government (1956), 56.

7 A. Etzioni, ‘The Evils of Self-Determination’, (1992) 89 Foreign Policy 21, at 21.

8 J. H. W. Verzijl, ‘The Right to Self-Determination’, in Verzijl, International Law in Historical Perspective, Vol. 1 (1968), 321.

9 Simpson, G., ‘The Diffusion of Sovereignty: Self-Determination in the Post-colonial Age’, (1996) 32 Stanford Journal of International Law 255, at 257Google Scholar.

10 J. Crawford, ‘Right of Self-Determination in International Law: Its Development and Future’, in P. Alston (ed.), Peoples’ Rights (2001) 7, at 10.

11 Sinha, S. Prakash, ‘Is Self-Determination Passé?’, (1973) 12 (2)Columbia Journal of Transnational Law 260, at 260Google Scholar.

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15 P. Allot, ‘Self-Determination – Absolute Right or Social Poetry?’, in C. Tomuschat (ed.), Modern Law of Self-Determination (1993), 177, at 177.

16 J. Castellino and S. Allen, Title to Territory in International Law: A Temporal Analysis (2003), at 9.

17 For an authoritative account see generally S. Lalonde, Determining Boundaries in a Conflicted World: The Role of Uti Possidetis (2003).

18 Frontier Dispute Case (Burkina Faso v. Mali), Judgment of 22 December 1986, [1986] ICJ Rep. 554, para 23.

19 Ibid., para 25 (emphasis added).

20 Ibid.

21 H. S. Johnson, Self-Determination within the Community of Nations (1967), 116.

22 J. Crawford, The Creation of States in International Law (1979), at 100.

23 Jennings, supra note 6, at 56.

24 M. Koskenniemi, ‘National Self-Determination Today: Problems of Legal Theory and Practice’, (1994) 43 ICLQ 241, at 249.

25 For the purposes of this article I am disregarding the line of argument that claims that the principle of self-determination derives from Fichte's and Herder's appropriation of Kant's ideal of individual self-determination. For the most articulate version of that argument see E. Kedourie, Nationalism (1998), 12–87. In international law that argument is reproduced in Morgan, E., ‘Imagery and Meaning of Self-Determination’, (1987–8) 20 New York University Journal of International Law and Politics 355Google Scholar.

26 S. Wambaugh, A Monograph on Plebiscites (1920), 2. See also T. Woolsey, ‘Self-Determination’, (1919) 13 AJIL 302, at 304. See also R. Redlsob, Le Principe des nationalités (1930), at 5.

27 T. Hobbes, Leviathan, ed. J.C.A. Gaskin (1996), 115.

28 J.-J. Rousseau, The Social Contract, trans. M. Cranston (1968), 61.

29 Hobbes, supra note 27, at 115 (emphasis in original).

30 Rousseau, supra note 28, at 61.

31 Ibid., at 112.

32 Rousseau, supra note 28, at 1.

33 Ibid., at 92.

34 Ibid., at 90.

35 The reference to the ‘statesman’ who is hitting the mean is not available in Cranston's translation. See J.-J. Rousseau, The Social Contract and Discourses, trans. G. D. H. Cole (1973), 221.

36 A. Bloom, ‘Rousseau's Critique of Liberal Constitutionalism’, in C. Orwin and N. Tarcov (eds.), The Legacy of Rousseau (1992), 143, at 161.

37 Rousseau, supra note 28, at 67.

38 Ibid., at 153.

39 Hobbes, supra note 27, at 117.

40 R. Filmer, ‘Observations on Mr Hobbes's Leviathan: Or, His Artificial Man – A Commonwealth’, in G. A. J. Rogers (ed.), Leviathan: Contemporary Responses to the Political Theory of Thomas Hobbes (1997), 7.

41 S. Wolin, Politics and Vision: Continuity and Invention in Western Political Thought: An Expanded Edition (2004), at 236.

42 See J. Habermas, ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’ (2001) Political Theory 766, at 776; T. Nagel, Equality and Partiality (1995), 33–4.

43 A. Pavkovic and P. Radan, Creating New States: Theory and Practice of Secession (2008), 5.

44 D. Philpott, ‘In Defense of Self-Determination’, (1995) 105 Ethics 352, at 362–3.

45 Ibid., at 360.

46 M. Moore, Ethics of Nationalism (2001), 171.

47 Ibid., at 200.

48 For the concept of habitation rights see H. Beran, ‘A Democratic Theory of Political Self-Determination for a New World Order’, in P. Lehning (ed.), Theories of Secession (1998), 36; see also M. Walzer, Spheres of Justice (1993), at 43.

49 Moore, supra note 45, at 194.

50 Ibid., at 161.

51 Ibid., at 157.

52 A. Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (2004), 222.

53 J. Levy, ‘National Minorities without Nationalism’, in A. Dieckhoff (ed.), The Politics of Belonging: Nationalism, Liberalism and Pluralism (2004), 155, at 165. Levy has argued that the ‘past injustice’ argument often turns on the ‘tendency for future injustices’. Past injustice, for him, is not a reason in and of itself for the creation of a new state, but rather an indicator of ‘a greater than usual propensity for future injustices’.

54 A. Skordas, ‘Self-Determination of Peoples and Transnational Regimes: A Foundational Principle of Global Governance’, in N. Tsagourias (ed.), Transnational Constitutionalism: International and European Perspective (2007), 207.

55 Ibid., at 218.

56 Ibid.

57 Ibid.

58 See Opinion No. 1. of the Arbitration Commission of the Peace Conference on Yugoslavia – 29 November 1991, in S. Trifunovska, Yugoslavia through Documents: From Its Creation to Its Dissolution (1994), at 415, 416.

59 Skordas, supra note 53, at 212.

60 Ibid., at 214.

61 F. Johns, ‘The Globe and the Ghetto’, in M. Lederer and P. Muller (eds.), Criticising Global Governance (2005), 69, at 70 (emphasis added).

62 J. Tully, Public Philosophy in a New Key, Vol. 1, Democracy and Civic Freedom (2008), 16.

63 Ibid., at 37.

64 See, e.g., J. Biden, ‘Opponents of new Kosovo Must Be Stopped’, Financial Times, 3 January 2007.

65 C. Johnston, The Sorrows of Empire: Militarism, Secrecy, and the End of the Republic (2004), 155, 215.

66 See, e.g., Yack, B., ‘The Myth of the Civic Nation’, (1996) 10 (2)Critical Review 193CrossRefGoogle Scholar, at 196 and passim. See also R. Brubaker, ‘Myths and Misconceptions in the Study of Nationalism’, in M. Moore (ed.), National Self-Determination and Secession (1998), 233, at 257 and passim.

67 Civic nationalism has been exemplified by consolidated independent Western states such as France. However, sub-state nationalisms such as Scottish or Catalan have also been described as good, civic nationalisms. See S. Tierney, ‘We the Peoples: Constituent Power and Constitutionalism in Plurinational States’, in M. Loughlin and N. Walker (eds.), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (2007), 229, at 232.

68 I borrow the term ‘orphans of secession’ from J. MacGarry, ‘“Orphans of Secession”: National Pluralism in Secessionist Regions and Post-Secession States’, in Moore, supra note 65, 215.

69 D. Serwer and Y. Bajraktari, ‘Kosovo: Ethnic Nationalism at Its Territorial Worst’, Special Report No. 172, August 2006, United States Institute of Peace, available at (emphasis added).

70 Skordas, supra note 53, at 221.

71 C. Wellman, A Theory of Secession: The Case for Political Self-Determination (2005).

72 For the most influential modern account of the idea that majority vote exemplifies the aspiration to the (unachievable ideal of) unanimity see H. Kelsen, ‘On the Essence and Value of Democracy’, in A. J. Jacobson and B. Schlink (eds.), Weimar: A Jurisprudence of Crisis (2000), 84.

73 ‘Timeline for Independence’, Kosovo Notes and Comment, available at www.newkosovo.org/Newsletter_Issue_Six.pdf (emphasis added).

74 J. Dobbins, ‘Majority Rule that Respects Minorities’, Rand Corporation, 11 June 2005, available at www.rand.org/commentary/061105IHT.html (emphasis added).

75 Reference Re Secession of Quebec, [1998] 2 SCR 217, (2) Question 1, available at http://csc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.html. Interestingly, the Supreme Court did not frame the issue of Quebec's secession as a matter of ‘self-determination’, but rather as an issue that ought to be governed by the four unwritten principles of Canadian constitutional law. The demand that an order ‘cannot remain indifferent’ – that it must be responsive – to even radical political agendas, features prominently in Jan Klabbers's recent account of self-determination. Klabbers, J., ‘The Right to be Taken Seriously: Self-Determination in International Law’, (2006) 28 (1)Human Rights Quarterly 186CrossRefGoogle Scholar.

76 Ibid., at para. 67.

77 P. Monahan et al., ‘Coming to Terms with Plan B: Ten Principles Governing Secession’, in D. Cameron (ed.), The Referendum Papers: Essays on Secession and National Unity (1999), 244, at 292.

78 For a recent argument in favour of allowing micro units to secede from larger states see B. A. Hendrix, Ownership, Authority and Self-Determination (2008).

79 E. Vinokurov, A Theory of Enclaves (2007), 4.

80 Hendrix, supra note 77, at 144.

81 Hobbes, supra note 27, at 112.

82 Calhoun, C., ‘Imagining Solidarity: Cosmopolitanism, Constitutional Patriotism, and the Public Sphere’, (2002) 14 (1)Public Culture 147CrossRefGoogle Scholar.

83 E. S. Morgan, Inventing the People, The Rise of Popular Sovereignty in England and America (1988), 306.

84 W. Connolly, Ethos of Pluralization (1995), xx.

85 Morris, C. W., ‘The Very Idea of Popular Sovereignty: “We the People” Reconsidered’, (2000) 17 Social Philosophy & Policy 1, at 17CrossRefGoogle Scholar.

86 Gans, C., ‘National Self-Determination: A Sub- and Inter-state Conception’, (2000) 13 (2)Canadian Journal of Law and Jurisprudence 185, at 190CrossRefGoogle Scholar.

87 Both documents are available in English, Albanian, and Serbian at www.assembly-kosova.org/?cid=2,100.

88 I am anthropomorphizing ‘the Serbian translation’ – saying that it ‘suggests’ and ‘portrays’ – as I have no evidence of who is its real author – a State Department official, a Kosovo Albanian constitutional scholar, a sloppy Serbian translator, or somebody else. I do not believe, however, that those departures from the conventional translation of ‘the people’ as ‘narod’ are accidental.

89 Ibid., at 26.

90 Ibid.

91 Ibid.

92 Ibid.

93 Ibid., at 61.

94 N. Jacobson, Pride and Solace: The Functions and Limits of Political Theory (1986), x.

95 L. L. Fuller, Legal Fictions (1967), viii.