Referendums Today: Self-determination as Constituent Power?

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. We see this in the (in)famous Badinter Commission Opinion on Bosnia-Herzegovina where the signal to Bosnia seemed to be ‘show the international community that “the people” want statehood’ and we’ll recognise you. The referendum was even suggested as the ideal means with which to do so. Secondly, the referendum played a subtle but important role in the path to statehood for Kosovo. Certainly there has been no referendum on Kosovan independence since the unofficial polls held by the separatist administration in the early ‘90s. But the inclusion of a popular consultation after three years to determine final status, contained in the draft Rambouillet Accord in 1999, was one of the elements that proved too much for Belgrade. As far as FRY was concerned Rambouillet was a Western attempt to sanction the inevitable secession of Kosovo by plebiscite. Thirdly, the international community has shown itself willing to engage in all aspects of the referendum. We see this in Southern Sudan, but there is also Montenegro 2006 where European institutions were central in the approval/framing of: the framework referendum law, the question, the franchise and even the threshold rule.

This leads us to another point which is the generation of some proto-international standards for the referendum. In particular, the Venice Commission of the Council of Europe has been central in generating these, and step by step the Montenegro process was assessed against these standards. Nor was the EU in Montenegro averse to looking at constitutional practice elsewhere. The opinion of the Supreme Court of Canada on Quebec [‘the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada.’ Secession Reference para. 92] was used in Montenegro to put into numbers the Supreme Court’s vague reference to a clear majority. The level of international engagement is facilitating Montenegrin independence was nothing less than astounding. So much so that the intervention in Southern Sudan and the creation of a  timeline to an independence referendum perhaps no longer strikes us as being the radical development which it surely is. But after these processes it does seem that we must re-think the standard trope of the post-war world which has sought to circumscribe the application of self-determination as mere toolkit for decolonisation.

It seems therefore that we don’t have a renewal of the right of self-determination as the moral philosophers have argued for, but we do have a principle that refuses to disappear. Self-determination – however much the international community tries to disguise it behind the veneer of state dissolution etc. – re-emerges, case by case, in situations of deep ethnic conflict, to unsettle international actors particularly in cases where there is sufficient energy for international intervention. And in such situations we seem to see a subtle re-balancing of emphasis away from the inevitable default of territorial integrity, and towards the legitimacy of disaffected peoples seeking to exercise constituent power by the mobilisation of direct democracy.