This Article examines international legal, political, and institutional responses to separatist movements that are based on national identity. Drawing on the insights of non-legal disciplines into the relationship between national identity, popular sovereignty, and state formation, the author argues that international law governing the establishment of new states is outmoded. Shaped centuries ago by principles of Roman law that assimilate territorial sovereignty to ownership of private property, this law has failed to adapt to profound transformations in prevailing conceptions of sovereignty. The author's central claim is that international law's recent endorsement of democratic rights has far greater significance for separatist claims than has heretofore been recognized. She challenges the widely held view that questions of boundary are beyond the province of democratic theory. Although democratic principles do not compel a uniform response to secessionist movements, neither are they irrelevant to the resolution of contested separatist claims. The author's analysis of the relationship between democratic rights and separatist claims highlights a democratic paradox: Although the civic culture of liberal democracy may be the best inoculation against intolerant nationalism, the rapid onset of democracy in multi ethnic societies lacking such a culture makes resort to ethno-politics more likely-and more perilous.
Diane F. Orentlicher,
Separation Anxiety: International Responses to Ethno-Separatist Claims,
Yale J. Int'l L.
Available at: http://digitalcommons.law.yale.edu/yjil/vol23/iss1/2