Diversity and Self-Determination in International Law

Abstract

The emergence of new states and independence movements after the Cold War has intensified the long-standing disagreement among international lawyers over the right of self-determination, especially the right of secession. Knop shifts the discussion from the articulation of the right to its interpretation. She argues that the practice of interpretation involves and illuminates a problem of diversity raised by the exclusion of many of the groups that self-determination most affects. Distinguishing different types of exclusion and the relationships between them reveals the deep structures, biases and stakes in the decisions and scholarship on self-determination. Knop's analysis also reveals that the leading cases have grappled with these embedded inequalities. Challenges by colonies, ethnic nations, indigenous peoples, women and others to the gender and cultural biases of international law emerge as integral to the interpretation of self-determination historically, as do attempts by judges and other institutional interpreters to meet these challenges.

The Advisory Function of the International Court of Justice 1946-2005

“…Case and others about considerations of judicial propriety, the Court down to the present has never invoked this principle in order to decline to give an advisory opinion when requeste Lastly, it is important to note that not only did the Court decline to apply the Eastern Carelia principle where there was a legal question pending between two or more States,50 but 47 See para. 48 of the Wall Advisory Opinion, supra note 28.…”

The International Legal Order

“…In such functionalist thinking, the state is simply one contender among many to be considered when the allocation of governance powers is made as part of the optimal functional design of each governance regime. Feminist scholars concentrated in Australia and North America have attacked the gendered imagery of pluralist statism, and highlight its adverse implications for women (Charlesworth and Chinkin, 2000;Knop, 2002). An assortment of European scholars, state-centered system of international law, and have worked hard to try to increase the influence of these states within it (Maluwa, 1999).…”

“…Kennedy, 1987). Upon this base have been built illuminating accounts of the history (Koskenniemi, 2002;Anghie, 1999;Berman, 2000) and sociology (Kennedy, 2000) of the discipline of international law, an increasingly suggestive engagement of international law with the discipline of comparative law, and valuable explorations of the scope and human implications of such fundamental concepts as self-determination (Knop, 2002).…”

“…These include the roles of international law in accentuating or alleviating poverty and inequality (Pogge, 2002); social violence and transnational violence, including arms sales and financing; nuclear obliteration; the legal structures for the movement of people and for political expression through citizenship or self-determination (Knop, 2002); the marginalization or (re-)integration of religiosity and religious power structures in the law of the global political order; the roles and responsibilities of corporations and of networks; the roles of states and the implications of variations in state formations and in national legal cultures. Other pressing themes are more technical and manageable as the discipline evolves: the development of international administrative law; the relations between international, transnational, and state law; the integration of international economic law with global and local social and environmental policy;…”

“…The function of dispute management, which has received particular emphasis in the English and French traditions and in much Commonwealth scholarship, is only one of many functions of international law. As Grotius' De Jure Belli ac Pacis manifests, the discipline of international law has historically been impelled by other systemic objectives, including the expression of essential values of the international political system, the development of a normative language for international politics, and the articulation and propagation of an international morality (Koskenniemi, 2002;Knop, 2002;Habermas, 1996;Anghie, 1999). Contemporary scholarship has highlighted many further functions of international law.…”