This article (or conference transcription) discuses the role that critical race theory may have on what, will be called, self-determination movements. It commences with the introduction of four speakers Taygab Muhmud, Seigfried Weissner, Julie Mertus and Donna Coker, discussing various forms of self-determination movements of indigenous people, the neocolonial plight of the people of South Asia and a comparative analysis of Eastern Europeans. The article then undertakes an innovative critical analysis of the acceptance of the liberal international law doctrine of self-determination. In particular, it will critique the purportedly universal norm of self-determination in order to expose and explain its inherent subjectivity and the incoherence that results from its arbitrary nature. It undertakes this task by assessing the positive legal paradigm that exists for addressing international law. In theory, self-determination is intended to bestow upon all peoples the right to determine their future. At this point, practice intersects with theory, and the problem arises because of the inherent shortcomings of a positivist formulation. The positivist does nothing more than state what the law is, rather than state what it should be. With this as the dominant paradigm, it is often impossible to discern whether a law is effective because the formulation is merely descriptive. This article argues that the traditional positivist paradigm is nothing more than formalistic social construction that has been designed by international scholars. Because, historically, these international scholars have not questioned what the law should be, their failure to question the underpinnings and normative values of their doctrinal formulations renders their laws to be limited, incoherent, anachronistic, and apologistic attempts to be objective in spite of historical occurrences. In addition to pointing out the flaws of the paradigm, the Article engages in a deconstruction of the right of self-determination and concludes with a brief reconstruction of this right.
Reconstructing Self-Determination: The Role of Critical Theory in the Positivist International Law Paradigm
, 53 U. Miami L. Rev. 943
Available at: https://ecollections.law.fiu.edu/faculty_publications/316