Macklem: Self-Determination in Three Movements

Patrick Macklem (Univ. of Toronto - Law) has posted Self-Determination in Three Movements. Here's the abstract:

This essay argues that the right of self-determination has become an instrument whose purpose is to promote a just distribution of sovereign power in the international legal order. It has come to assume this task because of three conceptual movements it underwent in the twentieth century that dramatically transformed its legal scope and content. The first had its origins in events surrounding the Paris peace process in 1919, where self-determination’s class of beneficiaries moved from the population of an existing state to potentially populations within and across state boundaries. The second, a movement in legal status, from a principle to a right, coincided with international law’s engagement with the dramatic decolonization projects that took root after the Second World War. The third movement is best understood in the context of self-determination’s awkward relationship to central tenets of both public international law and international human rights law. It is a movement between legal orders, from its engagement with the international realm to an additional engagement with the domestic realm, from an entitlement that had the capacity to protect existing states or produce new states to one that also validates domestic constitutional reorganization of a political community. As a result of these three movements, the right of self-determination authorizes the formation of a new state by a colonized population and, more controversially, when an existing state fails to secure effective measures of political representation – what international law refers to as "internal self-determination" – for a people in its midst.