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Referendums Today: Self-determination as Constituent Power?

Published on February 9, 2011        Author: 

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Stephen Tierney is Professor of Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law at the School of Law, University of Edinburgh .

 Editor’s Note: This post is a response to a previous post by Timothy Waters: “Let his People Go: Sudan’s Lesson for Secession” which comments on the implications for international law of the recent referendum in Southern Sudan on independence.

The notion that the right of self-determination embraces a legitimate claim to independent statehood seemed to have fallen into desuetude with a decolonisation process that was largely completed by the 1970s. Despite (or more probably because) of this, the feasibility of a new right, generated from first principles, caught the eye of moral philosophers who, particularly in the 1990s, debated how such an entitlement might be based upon demotic integrity (e.g. Harry Beran) or some kind of remedial principle (e.g. Allen Buchanan). For international lawyers, of course, this mode of reasoning is so unrealistic as to be unhelpful for a range of reasons. But it does seem that a strict dichotomy between the redundancy of self-determination in legal terms and the renewed interest in the principle at the political/normative level is not the whole story. As we reflect on the two decades of international response to the ‘new nationalism’ since Slovenia’s referendum on independence from the SFRY in December 1990, there have been subtle but important shifts in how the ‘international community’ has responded to statehood claims presented by sub-state territories. In this time we have seen how the impetus for such change at the local level can build international support, how particularly in light of violent conflagrations which pose threats to peace and security international intervention can focus not simply on security problems but also on their underlying constitutional causes of these threats, and how the subsequent structure of response by powerful states has in certain cases facilitated moves towards statehood.

 There are many angles to this shift in direction, but I would like to focus briefly on the use of the referendum – applied most recently in Sudan – as a particularly illuminating feature of this change in structural response. First, the referendum has emerged as one of the gateways to a new, normative-rich set of recognition criteria. Read the rest of this entry…