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Pavkovic, Aleksandar; Radan, Peter --- "In Pursuit of Sovereignty and Self-Determination: Peoples, States and Secession In the International Orde" [2003] MqLawJl 1; (2003) 3 Maquarie Law Journal 1



‘The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.’

(Declaration of the Rights of Man and the Citizen, 26 August 1789, the National Assembly of France)

This lofty declaration removes the right to rule from a well-known and easily identifiable entity – the monarch, and bestows it to a rather elusive but apparently familiar collective entity – the nation. While the intention of the Declaration was to deny to the monarch a traditional unbounded right to rule, its unintended consequence was to introduce a new collective right – the right of nations to rule over themselves and thus to create new states out of the existing ones. This new right, enunciated as the principle of national self-determination, has so far been unusually productive. It provided a justification for the creation of over 150 new (at least nominally) independent states. At the same time, the right has been highly contested, its application being marked, at times, by violence and war. It is with this unintended consequence of the Declaration of the Rights of Man and of the Citizen – the principle of national self-determination – that this collection of articles written by philosophers, political theorists and legal scholars, is concerned.

The articles in this volume address two related groups of problems. The first group concerns tensions between the principle of national self-determination and other equally general principles of political organisation and international law, such as the principle of state sovereignty. The second group of problems arises when the principle of national self-determination is used to justify the creation of new states by the process of secession.


The principle of self-determination bestows a right upon any nation to ‘determine itself’ where ‘to determine’ is usually interpreted to mean ‘to govern’. While the scope and nature of governing has indeed been a subject of continuing debate, it is the concept of the ‘self’ that does the governing that has been the key problem for any theory attempting to elucidate the notion of self-governance. What is the ‘self’ to which this principle refers? The common and no doubt correct answer that it is the nation that does the governing, raises more questions than it answers. For what constitutes a ‘nation’ has been continuously debated both in theory and in everyday political contexts since the time of the Declaration of the Rights of Man and the Citizen.

In the first article in the collection, Robert Ewin finds the defining characteristics of a nation in the ties of mutual affection or sentiment, often defined as ‘loyalty’, that binds its members. This view of the nation as a group bonded together with the ties of sentiment has a long and distinguished ancestry. As early as 1861, in his Considerations on the Representative Government, John Stuart Mill offered a similar view: ‘A portion of mankind may be said to constitute a Nationality if they are united among themselves by common sympathies which do not exist between them and any others’.[1] A century later, Brian Barry also referred to ‘a sentiment of common nationality’ and a loyalty to one’s nation as the defining feature of the nation as opposed to other kinds of groups.[2] Similar views of the nation are expressed by thinkers as diverse as Ernest Renan, in his seminal pamphlet What is a Nation? (1882) and Bertrand Russell in his now almost forgotten Political Ideals (1917).

In spite of the continuing controversy over the defining features of the ‘self’ in the principle of self-determination, Ewin notes that theorists of secession generally assume two things: that the ‘self’ are a people and that who the people are is either self-evident or could be easily established. For many such theorists, the main theoretical problem of secession is establishing where the right of self-determination lies. Ewin identifies a different problem. He argues that the main problem for a normative theory of secession is how to justify taking unwilling individuals and groups of individuals into a new state. In such cases, secession is comparable to a kidnapping of people and taking them against their will to some other place. This problem reveals that any justification of secession by reference to the people’s right of self-determination requires us to answer a prior question of what constitutes a people?

If those who decide to set up a state were unanimous in their decision, the answer to this question would simply be that a people is a group of individuals who unanimously choose a separate state. But such unanimity is, in cases of secession, very rare. The problem facing individuals in the context of the creation of new states through secession is best exemplified in the dilemma facing the Confederate General Robert E Lee at the start of the American Civil War. Whilst he recognised his love for, and devotion to, the Union, he further discovered that his paramount loyalty was to his native Virginia. This loyalty, Ewin claims, is a matter of emotional attachment, not of a self-interested calculation or consent or contract. This emotional attachment to one’s nation, Ewin suggests, is analogous to that of an attachment to a family, and as in a family, blood and descent are the ties that are supposed to bind a nation together.

Ewin argues that apart from ties of affection, the members of a nation are also tied by their obligations to each other. But in order to identify those to whom these obligations of care and concern are due, one relies on other ties, ones that Ewin regards as ties of affection or emotion. The fact that membership of the nation is not determined by right or obligation but by affectionate relationships does not make it morally less valuable. These affectionate relationships are subsumed under the general category of ‘loyalty’. Loyalty is a sentiment or attitude that determines the values of other types of actions or attitudes. Those who disagree with a particular secession usually feel no, or insufficient, loyalty to the group that is seceding. Therefore, in the absence of this feeling of loyalty, if secessionists are to convince the unwilling to accept the secession as a necessary and legitimate act, they need to appeal to the injustice that the seceding group has suffered, and which will be removed and prevented by secession.

The definition of a nation provided by Ewin in terms of the affection that ties its members together does not explain why its adherents consider a nation to be a self-determining or self-governing entity. The problem he is addressing is not how and why this determining is done, but who does it. It is generally assumed that the determining is done by the groups capable of identifying themselves as nations whose members are bound by the ties of loyalty. However, that capacity for self-identification as a nation, Ewin argues, is not sufficient to establish that the right of self-determination belongs only to nations.


The state, it is commonly agreed, is a political organisation that exercises ultimate sovereignty over a delimited territory and its inhabitants. In this respect, sovereignty means, at least in international law, the equality of all states. This view of equal and sovereign states, however deceptive it may be, is still the view that currently underpins much of international law and international relations theory.

In the second article in the collection, Martin Griffiths argues that the principle of national self-determination challenges the fundamental principle on which the international order of states is based, that of territorial sovereignty. A modern state has exclusive sovereignty over a specific territory which is regulated by international law. It is this territorial sovereignty that entitles states to be recognised as legally equal agents in the international arena. The principle of national self-determination, from the French revolution onwards, asserts the sovereignty of the people. It is the will of the people that makes a state legitimate. This principle implies that a people should be free to choose their own state and to determine the territorial boundaries of that state. As Griffiths notes, there are more nations than there are states and there is no juridical process available to redistribute the states and their boundaries according to the will or wishes of these nations. From this, Griffiths concludes that the ‘society of states is at an impasse’.

According to Griffiths, in spite of the rapidly growing number of states, the mutual recognition of territorial sovereignty has led to a gradual delegitimisation of territorial conquest and a decrease in inter-state conflict. However, the increased recognition of the principle of national self-determination has led to an increase in the number of civil, or intra-state, conflicts. Thus, it is the competition for sovereignty among different national groups within states that has led to increased intra-state conflict.

The realist theory of international relations insists on the primacy of territorial sovereignty over national self-determination. Consequently, the realist theory supports the policy of containment of self-determination within the boundaries of existing states. This policy was quite successful during the Cold War and the resulting bi-polar balance of power, since each super-power restrained the other from supporting claims to self-determination that would have led to the fragmentation of existing states. However, the demise of the bi-polar balance of power, removed these restraints and thus opened up a possibility of unchecked expansion of national self-determination claims.

In contrast, liberal internationalism promotes not only the abolition of war among states but also an increase in the scope of the liberties of individuals within states. Some liberal internationalists argue that the expansion of global markets leads to the cooperative ‘regimes’ crossing state borders, thus diminishing the significance of the territorial sovereignty of individual states. Thus, territorial sovereignty no longer appears to be the necessary instrument for the avoidance of war and conflict. Other liberal internationalists argue that civic nationalism ‘dilutes’ the potential for conflict among national groups by transforming demands for ethnic self-determination into demands for empowerment of all citizens within the state. Griffiths, however, finds no evidence that such a transformation of ethnic claims to self-determination is under way or that such a transformation is achievable.

With both containment and dilution policies failing to remove the threat of increased conflict arising from demands for self-determination, Griffiths urges more flexibility and imagination in dealing with self-determination. The increase in the scope of minority rights, and the promotion of devolution, federalism and cultural expression of national group identities are all viable and legitimate forms of national self-determination. Another alternative model of national self-determination is, according to Griffiths, found in the ‘interlocking networks of accountable sub-national and supra-national political institutions’ which would restrict the significance of territorial sovereignty as a source and focus of political power.

One might ask what such restricted or non-sovereign forms of self-determination would offer to national groups and their leaders? Territorial sovereignty still remains the central source of political power and the main locus of international recognition, while the diluted forms offer neither the recognition nor the power associated with territorial sovereignty. This would give to national groups and their leaders a good reason to prefer the former to the latter. Faced with this radical brand of liberal internationalism, cosmopolitan liberalism, promoted among others by Thomas Pogge and David Held, urges a shift of the focus of political power and status to a world government and away from territorially conceived nation-states. Under a world government, secession and change of boundaries would be relatively easy and would not involve any significant change in the mode of governance or a shift of political power. In effect, this would de-politicise secession and transform it into a change of administrative boundaries. But the possibility of world government is premised on the virtual abandonment of the principle of political self-determination of national groups or peoples. Under a world government, all inhabitants of the world and not just separate peoples or national groups would do the governing. Popular self-determination of national entities would thus be superseded by the principle of self-determination of all individuals, regardless of their national identity.

There is no indication at present that national groups – both the dominant nations and minority groups – are ready to abandon the principle of national self-determination in its present form. But the radical utopia of cosmopolitan liberalism makes it clear that threats of continuing war and conflict arise, not only from the clash of the principle of national self-determination with the principle of territorial sovereignty, but also from the former principle alone. Since the principle of national self-determination regards ‘bounded’ national groups as sources of legitimacy and political power, it fosters conflict both over their boundaries and over their representation and their leadership. If so, the source of conflict does not lie in the striving for control over a territory but in the competition for political control over representation and leadership within groups. Even within Griffiths’ interlocking networks of supra-national and sub-national political institutions, there would still be competition for the control of the political institutions which may give rise to violent conflict.


Whereas for Griffiths, a more flexible and imaginative way of handling claims of self-determination would be to increase the scope of national minority rights within existing states, in the third article in the collection, Kirsten Porter briefly outlines a theoretical framework within which this might be possible. Porter’s essay addresses the question not of political self-determination of national groups but of the protection of their cultural identity within multi-national or multi-ethnic states. While offering no answer to the question of how to satisfy demands for national self-determination of national minorities, Porter suggests that a restriction of these demands to the maintenance of national cultures may avoid the conflict between the principles of territorial sovereignty and national self-determination discussed by Griffiths.

Porter holds that various factors have contributed to the erosion of the centuries-old model of nation-states. These factors include the development of transnational institutions such as the European Union, the pressures of sub-national groups to take some control out of the nation-state’s jurisdiction, and the development of global markets which cannot be controlled by the nation-state. As a result of these erosions, ethnic conflict has re-emerged as one of the main problems to world peace and stability. Protection of minority rights is, in her view, one of the ways of preventing and avoiding ethnic conflict. She believes that state sovereignty and territorial integrity still override the demands of national self-determination. The protection of national minorities has, therefore, to be carried out with full regard for the territorial sovereignty of the nation-state.

For Porter a national minority is a non-dominant group in a state that shares cultural characteristics and wants to maintain its distinct identity independent of the majority group. In view of this, minority rights are the basic freedom of national minorities to retain their own culture and identity. This would require recognition, protection and promotion of their cultures. Following Karl Renner, an Austrian constitutional jurist, Porter believes that minority rights can be protected and promoted within a system that grants non-territorial autonomy to national minorities while maintaining the administrative unity of a multi-nation state. National groups would be organised as non-territorial national associations which would assume control over cultural matters. Political and judicial control would remain with the territorially organised state. In Porter’s opinion, a minority has to abandon any secessionist goals if its right to maintain a national identity is to be recognised and protected within a multi-national state. While conceding that a single model, such as the one she suggests, cannot provide a universal solution to the problem of protection of minority rights, Porter nevertheless maintains that the structure of the current nation-state must become more flexible to allow for concurrent expression of multiple cultural identities.

Like Griffiths, Porter believes that increased flexibility of the nation-state structure is a pre-requisite for any resolution of the tension between the demands of national minorities and the assertion of nation-state sovereignty. Her essay, however, leaves open the question of how globalisation and the rapid spread of information through globalised communication networks would impact on the existing cultural and national identities. As the English language and American culture come to dominate the ever expanding realm of cyberspace and information networks, within those networks the questions of national self-determination and the protection of minority cultures and rights appear not to arise at all. As a result, one may argue that, in the long run, these questions will lose the significance that they still appear to have in everyday politics. This does not mean that cultural minorities will become assimilated to a global culture. But perhaps the need for political or legal protection of these minorities and their cultures may lose the political significance that it now appears to have: minorities may survive as carriers of ‘folk’ cultures devoid of political salience. While an Anglophone mass culture would perhaps come to dominate the developed, information-based, world of increasingly flexible states in Europe and North America, ethnic conflict would be pushed to the underdeveloped world of failed or weak states where the scarcity of resources could only reinforce the violent struggles among national or ethnic groups. If so, an increased flexibility and erosion of current nation-state structures in the developed and the underdeveloped world would lead not to an increased assertion of national minority cultures, but to an ascendancy of global and transnational cultures and to increased violence within weakened states.


Secession is at present regarded as the ultimate assertion of sovereignty of a national group or groups over the territory which they inhabit. It is by virtue of its right to national self-determination that a national group usually claims sovereignty over that territory. As it has the right to govern itself, a national group has the right to establish a sovereign state on the territory on which it resides. Secession is thus an assertion of the superiority of both territorial sovereignty and national determination principles over any other political or ethical principles of political organisation. In the assertion of the right to secede, the principle of national self-determination justifies the assertion of territorial sovereignty for a particular national group. Thus, the two principles, which Porter and Griffiths argue are potentially in conflict, act in unison.

In the fourth article in the collection, Aleksandar Pavković asks how the principle of national self-determination can override all other political principles. In particular, Pavković asks how national self-determination, in the form of secession, could override the principles of majority rule and of equal rights, the two defining principles of a liberal democratic state. This is a corollary to the question raised by Ewin, of how one can justify imposing an unwanted state on a group of people (a minority in a seceding state) who do not feel any national allegiance to that state. Pavković frames the question as one of an equality of rights. If a minority within a state has the right to self-determination, then, by the principle of equality of rights, a minority within that minority would have the same right, and thus, the right to secede.

Pavković examines five contemporary normative theories of secession. Of these, only Harry Beran’s democratic theory endorses the equality of the right of secession. All the other theories hold that some groups have the right to secession while others do not. In these theories, the right of secession is unevenly distributed according to either the ‘natural’ or ‘political’ characteristics of a group. In the ‘anarcho-capitalist’ theory, only landowners have the right to secede. In Philippot’s communitarian theory, only those groups that desire direct or greater political participation have the right. Finally, in the two nationalist theories, only national groups, defined by their common (‘natural’) cultural identity, have a right to secede. This way of distributing the right of secession, Pavković maintains, leads to an inequality among individuals, an inequality that a liberal-democratic political order normally should not tolerate.

Secession does not necessarily have to breach the two liberal-democratic principles of majority rule and of equal rights. There is no such breach in a case of a mutually agreed secession which honours the right of all individuals within the state to decide on the issue of secession. According to Pavković, a unilateral secession, which breaches the majority rule principle within a state, can still be justified in a case in which the seceding group abides by that principle within the group itself and allows secession of any other group within the territory it claims. In an imaginary scenario, Pavković attempts to show that a minority group is justified in seceding, if secession is the only instrument at its disposal for the defence of its own liberties. One such liberty would be the liberty of a minority group and its members to pursue a politically satisfying life in a separate state. This type of justification, Pavković argues, assumes that national groups are free to pursue a political organisation of their own choice but not that they have a right to secede. Whether they are justified in creating their own state does not depend on their inherent characteristics, but on their adherence to liberal-democratic principles.

Yet one could easily argue that all secessions are carried out for the sake of defending liberties of some groups, and therefore, that all secessions could be justified in this way. But in almost every secession these liberties, their status and importance, are contested. Suppose that we agree that a secession would bring the desired liberty to the seceding minority group. Why are the liberties of this group more important than the liberties or interests of the majority? Why should the interests or liberties of a minority in such cases take precedence over the interests or liberties of a majority? And who is to say whose liberties are more important?

These questions are not likely to receive conclusive or definite answers – at least not in the foreseeable future. In view of this, why worry about justifications for secession at all? The borders of most of the present day liberal-democratic states (including the USA and Australia) were established either through military conquest or through dynastic contracts and marriages. Neither of these two means of border creation is compatible with liberal-democratic principles. Why require that new states and their borders be established in accordance with these principles? In demanding this, are we not being too high-minded or even hypocritical?


In relation to the question of whether the liberty of a minority within a state prevails over the liberty of the majority, cases of attempts to secede from a liberal-democratic state suggest that it is the majority that prevails. An early indicator to this effect emerged in the United States of the mid-nineteenth century. In his First Inaugural Address President Abraham Lincoln acknowledged that secession could be achieved pursuant the American people’s ‘constitutional right of amending’ their constitution.[3] In Texas v White, Chase CJ, speaking for the majority of the American Supreme Court, held that secession from what he referred to as the ‘indestructible union of indestructible states’ could nevertheless occur ‘through consent of the States’.[4] Of course, the case of the United States is intimately connected to the American Civil War and it was that war itself, more than anything else, that assured the impossibility of the unilateral secession of states from the United States. However, later examples emanating from the Australian and Canadian federations confirm that, in the context of secession without war, secession of a federal unit cannot be achieved unilaterally and without the consent of the majority of the population of the state as a whole.

In the fifth article in the collection, Thomas Musgrave notes that in the Australian context, supporters of the attempt by Western Australia to secede from Australia in the early 1930s argued that the democratic process justified secession if there was majority support for secession within a unit of the federation. Opponents of secession countered with the argument that secession could only be legitimised if there was majority support for secession across the entire federal structure. In the end, the Joint Select Committee of the British Parliament accepted the latter view, ruling that the British Parliament had no jurisdiction to consider legislation to facilitate Western Australia’s secession without the support for such a move of the Australian people as a whole. In this way the Joint Select Committee effectively rendered irrelevant and meaningless the almost two-thirds majority vote for secession gained in the secession referendum held in April 1933.

Musgrave’s account of the emergence of secessionist sentiment in Western Australia, and the analysis of arguments put for and against secession before the Joint Select Committee, serves to highlight the fact that a legal secession from the Australian federation requires the enactment of legislation by the British Parliament, notwithstanding the reference to the indissoluble nature of the federation in the Preamble to Australia’s Constitution. However, this could only be done at the request of the Australian federal government conveying the clearly expressed wish of the Australian people as a whole. Although the British Parliament can legally effectuate secession in the Australian context, it is only a theoretical possibility.

In the context of the Canadian federation, underlying constitutional law principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities, led the Supreme Court of Canada in its 1998 decision in Reference re: Secession of Quebec[5] (Secession Reference) to rule that the secession of a Canadian province could only be achieved by a constitutional amendment negotiated by all the participants in the Canadian federation. The innovative aspect of the Court’s decision was that such negotiations had to be conducted if a clear majority of the population of a province voted in favour of secession at a referendum. The Court conceded that such negotiations need not necessarily lead to agreement on a constitutional mandate, but stated that such negotiations had to be conducted in good faith by all parties. In the sixth article in the collection, on the determination of Quebec’s boundaries in the event of a secession, Suzanne Lalonde points out that the determination of the Supreme Court that negotiations must be conducted in good faith meant that a unilateral declaration of independence by a Canadian province would be illegal under Canadian constitutional law. Lalonde further observes that the constitutional law principles articulated by the Supreme Court may also inform the debate on the question of the right of secession in international law on the basis that they are also entrenched in a number of major human rights instruments.


The question of any right of secession in international law fundamentally revolves around the vexed question of the meaning of ‘a people’ in the context of the right to self-determination of peoples in international law. For most of the post-World War II era, the majority view was that ‘a people’ meant the population of a state, and, for the purposes of decolonisation, the population of a colonial entity. That a segment of a state’s population could be a people was generally, and often vigorously, denied. A consequence of this was that secession was generally regarded as having no legal basis in international law.

However, events of the post-Cold War period indicate that a people can include something other than the population of a state. The (still unfolding) fragmentation of the former Yugoslavia arguably has established that the population of a federal unit within a federation can constitute a people. This development, however, does not represent a major shift in, or expansion of, the generally accepted post-World War II orthodoxy. This is so because a people is still defined as the population of a territory, albeit the territory of a federal unit of a state rather than the territory of the state as a whole. Thus, as was asserted by the Badinter Arbitration Commission in the context of the former Yugoslavia, the Serbian minority populations in the Yugoslav republics of Croatia and Bosnia-Hercegovina, were not peoples for the purposes of the right to self-determination. Questions of the rights of minorities has continued to be viewed largely through the spectrum of the rights of individual members of minority groups through various human rights instruments, most importantly Article 27 of the International Covenant on Civil and Political Rights. This is something vastly different to recognising the collective rights of minorities to the right of self-determination.

In the final article in the collection, Joshua Castellino and Jeremie Gilbert argue that there needs to be a new understanding of the right to self-determination, one that embraces within it minorities and indigenous populations. This, of course, opens up the question of the right of secession that accompanied the granting of the right of self-determination to minority national groups more generally. However, there are indications that recognising minorities and indigenenous populations as being within the definition of a people is gaining currency. In its 1998 decision on secession, the Canadian Supreme Court clearly indicated that the francophone minority in Canada constituted a people for the purposes of self-determination. Castellino and Gilbert note that the status of minorities as peoples is a matter of contention, but nevertheless argue that an oppressed minority within a state may become a people for the purposes of self-determination possessed of the right of secession as a remedy of last resort. They also point to increasing recognition of indigenous populations as peoples with a right to self-determination. Castellino and Gilbert argue that traditional interpretations of self-determination need to be transformed to better accommodate the legitimate rights and interests of minorities and indigenous populations which they see as being achieved through what might be termed a human rights approach to self-determination. Nevertheless, they concede that oppressed minorities and indigenous populations would, as a last resort, be able to determine their own political status. For Castellino and Gilbert the possibility of secession may or should act as an incentive for states to accord minorities and indigenous populations meaningful internal self-determination in order to deter secession and thereby safeguard the territorial integrity of the state.


Questions pertaining to the meaning and scope of self-determination and to the legality of secession, either in international or constitutional law, raise many important issues. Perhaps the most significant issue arises when secession has actually taken place – the issue of the proposed borders of the new state. The case of the former Yugoslavia dramatically illustrates this point. The right to secession was a far less contested matter than that of the territorial scope of the new states that emerged as a result of secession. The bitter and protracted Yugoslav wars of the 1990s were fought over precisely this issue. In its wisdom, the international community ordained that the existing internal borders of the seceding Yugoslav republics were to be transformed into international borders. The major legal basis underpinning this policy was an adapted version of the principle of uti possidetis juris that had applied to cases of decolonisation. In essence, the principle of uti possidetis juris mandated that the borders of former colonial entities became international borders of the state following decolonisation. The major impetus for this transformation of principle came from the opinions of the Badinter Arbitration Commission.

In the Canadian context, an expert panel of advisers reviewed the opinions of the Badinter Arbitration Commission in a 1992 report to the Quebec provincial government on a possible secession of Quebec. On this increasingly debated issue within Canada, Suzanne Lalonde argues that the opinions of the Commission cannot and should not be sustained. She observes that the Canadian Supreme Court’s decision in Secession Reference also supports the view that Quebec’s current provincial borders would not automatically be transformed into international borders following secession. Indeed the question of borders is likely to be one of the most contentious issues in any negotiations for a constitutional amendment to facilitate Quebec’s secession. This is particularly so in relation to the northern two-thirds of Quebec, where the indigenous populations have signalled both their opposition to being part of an independent Quebec and their determination to resist, by force if necessary, their incorporation into an independent Quebec. Although the prospect of there being any move towards a secession of Quebec has receded in recent times, especially with the defeat of the separatist Parti Quebecois government in the 2003 Quebec provincial elections, the issue of Quebec’s independence still remains. With it remains the chilling prospect of human tragedy of a kind that occurred in the 1990s in former Yugoslavia.

The focal point of the articles in this volume is that of the right of peoples to self-determination. The articles reflect the contested nature of the discourse on self-determination. In 1918, American Secretary of State confided to his diary his bitter disappointment of his President’s championing of the principle of self-determination.[6] Much of what he said in that now famous diary entry has been proven to be true. The expression of self-determination is ‘dynamite’. It has ignited false hopes. Its implementation has been at the cost of countless lives. However, 85 years later, Lansing’s prediction that it would be ‘discredited’ has not proven to be true. On the contrary, it is one of the cornerstones of the international system. Nevertheless, it remains controversial, and as this collection of articles demonstrates, its scope and meaning provides fertile ground for debate.

[*] Associate Professor and Head of Department, Department of Politics and International Relations, Macquarie University.

[**] Senior Lecturer, Division of Law, Macquarie University.

[1] ‘Considerations on the Representative Government’ (1861) in H B Action edition of John Stewart Mill, Utilitarianism, Liberty, Representative Government (1972) 391.

[2] ‘Self-Government Revisited’ in David Miller & Larry Siedentop (eds), The Nature of Political Theory (1983) 137.

[3] ‘First Inaugural Address’, 4 March 1861, in Abraham Lincoln, Lincoln Selected Speeches and Writings (1992) 291.

[4] Texas v White [1868] USSC 97; (1869) 74 US 700, 726.

[5] [1998] 2 SCR 217.

[6] For the text of the diary entry see Daniel Patrick Moynihan, Pandemonium, Ethnicity in International Politics (1993) 83.

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