Whither the Principle of Self-Determination in the Post-Colonial Era? The Case for a Policy-Oriented Approach

27 Pages Posted: 14 Jan 2016 Last revised: 19 Jan 2016

See all articles by Daniele Amoroso

Daniele Amoroso

University of Naples Federico II, Faculty of Law

Date Written: January 14, 2016

Abstract

It is no secret that, since the end of decolonization, the principle of self-determination of peoples has been going through a veritable identity crisis. On the one hand, inconsistencies and double-standards are so commonplace in international practice as to justify the doubt that the law of self-determination is in fact power politics in disguise. On the other hand, a significant portion of the international community maintains that the principle has exhausted its historical function and applies only to a very limited number of hypotheses (e.g. Palestine or Western Sahara). Yet, self-determination of peoples and its jargon is still well entrenched in international legal life.

Against this background, international lawyers are called upon to clarify how the customary principle on self-determination has changed in order to meet the challenges posed by the new global order. So far, however, the various attempts to overcome the colonial paradigm have not led to satisfactory results, being doomed to capitulate in the face of the fact that international practice in this field is either too poor or is inconsistent.

The main reason for this difficulty lies in the penchant to conceive of the law of self-determination in a traditional, ‘static’ fashion, as a set of clear-cut rules whose content has to be distilled, ultimately, in the light of accumulated past decisions. I will argue, by contrast, that the principle at hand should be looked at in its ‘dynamic’ aspect, viz. as the ceaseless ‘process’ through which the international community provides an authoritative response to demands for self-determination. My working hypothesis, specifically, is that a valuable contribution to such an investigation may be offered by the policy-oriented jurisprudence developed by the so-called New Haven School of international law (NHS).

Keywords: self-determination; secession; irredentism; New Haven School; human dignity

Suggested Citation

Amoroso, Daniele, Whither the Principle of Self-Determination in the Post-Colonial Era? The Case for a Policy-Oriented Approach (January 14, 2016). European Society of International Law (ESIL) 2015 Research Forum (Florence). Available at SSRN: https://ssrn.com/abstract=2715694 or http://dx.doi.org/10.2139/ssrn.2715694

Daniele Amoroso (Contact Author)

University of Naples Federico II, Faculty of Law ( email )

Via nuova marina, 33
Napoli, Naples 80100
Italy

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