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Questions of self-determination are ever-present within the world order created by the United Nations and, if anything, they seem to be increasingly present, creating a difficult test for the international community and its institutions. The European Union is no exception to this and several national communities claim their right to self-determination in respect to one of its Member States. So far, the European Union has painstakingly avoided any involvement in these political disputes and has supported whatever course of action the concerned Member States have had to these demands, arguably overlooking some of the democratic principles that are the basis of the Union.
Please join us for the first discussion in our series on Democratic Governance and the Question of Self-Determination with Mark Tushnet, William Nelson Cromwell Professor of Law, Emeritus, on "Self-Determination: Who Decides Who Decides?"
From Professor Tushnet: "I begin by asking, What are the consequences of achieving self-determination in the form of national independence? Using the examples of trade/commercial and foreign policy, I argue that the newly independent nation need not have any greater autonomy in policy-making than it did as a component of the entity of which it was formerly a part. Within that entity it could have negotiated for some degree of autonomy in policy-making (as some subnational unites have indeed done), and as an independent nation its relations with other nations can constrain its policy-making autonomy perhaps even more than they were previously. The actual degree of policy-making autonomy, I argue, will be determined by power relations that preceded independence and aren’t changed by it. What cannot be provided within the prior entity, though, is full national identity on a par with national identity of other nations (even multicultural or plurinational ones). That, though, immediately raises a persistent issue in discussions of self-determination. In every location there are numerous candidates for national identity: people who identify as Quebecers, or as Quebecers within a multicultural Canada, or simply as Canadians. And do Canadians outside Canada count when we ask, Who gets to decide what “the” nation’s identity is? With the exception of decolonization and other forms of oppressive rule, I know of no satisfactory general answers to that question. Here too the likely answer is that the boundaries of the entity that gets to determine its national identity are resolved by politics and pragmatic judgments. As a constitutional law I live within an academic community that favors asking the courts to determine those boundaries. I argue, though, that shifting attention from the actual decision for independence to the institutions that determine the boundaries simply reproduces the difficulty it seeks to escape: Just as Quebecers in my first category have no reason in principle to accept a decision against Quebec independence by a Canadian parliament in which they are represented, the fact that a similar decision is made by a Court on which they are also represented and to which they can make reasoned arguments, gives them no principled reason to accept the decision."
Mark Tushnet, who graduated from Harvard College and Yale Law School and served as a law clerk to Justice Thurgood Marshall, specializes in constitutional law and theory, including comparative constitutional law. His research includes studies of constitutional review in the United States and around the world and the creation of other "institutions for protecting constitutional democracy." He also writes in the area of legal and particularly constitutional history, with works on the development of civil rights law in the United States and a history of the Supreme Court in the 1930s.