Document Type

Article

Disciplines

International Law

Abstract

Developments in a wide range of the social sciences (such as economics, feminism, racial studies and deconstruction) have strongly affected domestic law in recent years. This paper will argue that international law is not similarly influenced, even by the insights of such closely related disciplines as international relations and international politics. AnneMarie Burley has pointed out that, "[ilf social science has any validity at all, the postulates developed by political scientists concerning patterns and regularities in state behavior must afford a foundation and framework for legal efforts to regulate that behavior."1 By ignoring these postulates, international law is in a sense trying to formulate and operationalize global theories without recognition of the relevant data. As a result, its efforts at regulating international relations are misguided and unsuccessful.

One particular blindspot is the political phenomenon of ethnicity. Ethnicity is probably the major source of conflict in the world today, having caused the deaths of over ten million people since World War 11.2 Indeed, recent developments in the former Yugoslavia, Rwanda, Chechnya and Sri Lanka have shown that ethnic conflict is increasing in its destructiveness as the century progresses. As Donald Horowitz has noted, "[e]thnicity is at the center of politics in country after country, a potent source of challenges to the cohesion of states and of international tension."

Accordingly, ethnicity has become the subject of detailed study in many of the social sciences, including psychology, sociology, economics, and politics. International human rights law, by contrast, reflects little understanding of ethnicity's salience or origins, and is consequently unable to contribute meaningfully to the resolution of ethnic conflict.

Part II of this article will discuss the phenomena of ethnicity and ethnic conflict. It will conceptualize ethnicity as a form of group consciousness which is based on shared culture and history, and which develops as a response to societal crises - decolonization in particular - which threaten bases of psychological and material well-being. This section will also explain ethnic conflict, in turn, as it arises when ethnic awareness is mobilized for the purpose of attaining these basic social goods.

Part Il will illustrate the phenomena of ethnicity and ethnic conflict with specific reference to Zulu ethnicity in South Africa. The analysis will trace the growth of Zulu ethnic identity through the periods of Zulu imperialism and colonization. Further, I will argue that such growth of ethnic identity led to the ethnic conflict that was directly related to the competition for basic social goods set off by the breakup of the apartheid state.

Part IV will discuss the current approach of international law to groups and group rights - specifically, the doctrines of "peoples'," "..minority" and "indigenous peoples"' rights - and argue that the right to self-determination is presently restricted to colonial groups.

Furthermore, Part V will conclude that ethnic groups in the postcolonial context do not enjoy a right to self-determination, and will illustrate this by applying the different doctrines of group rights to the case of the Zulu people.

Part VI will assess the adequacy of this approach. It will argue that the ultimate criterion for determining the application of the right to selfdetermination should be the promotion of human rights, and that on this basis the current approach is historically outdated and politically naive. Not only is the process of decolonization largely complete, but, as the current understanding of ethnicity shows, the very process of decolonization has engendered group consciousness and group conflict at least as destructive of human rights as the colonial forms it replaced (in South Africa, for example, ethnic conflict has claimed the lives of over 16,000 people since the demise of apartheid).

Part VI will also discuss the potential dangers of extending the right of self-determination to ethnic groups, but will argue that these should be balanced against the corresponding benefits on a case by case basis rather than preclude extension of the right altogether. Concerns regarding state sovereignty will be identified as the major stumbling block to the reconceptualization of self-determination, and it will be argued that this statist bias needs to be overcome in order for self-determination to be a truly human rights-based doctrine. The new Ethiopian Constitution will be used to illustrate the conclusion that such a project is realistic.

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