Boxing Pandora:
Defining Borders in a Democratizing World
Draft – Not for citation without permission. Current through 2 April 2008.
Introduction and Rationale
Canonical and practical approaches to the territorial state in the post-war era have
cabined collective claims about the polity into very limited political space. Self-
determination has largely been limited to the liberation of colonies.
integrity (and non-aggression) have largely ensured the maintenance of existing states
within their historically received borders. Human rights and humanitarian intervention
have eroded the claims of states against any internal interference (as if such a time ever
obtained), but have had little effect on their frontiers. And in those cases where states
have changed their frontiers, politicians and lawyers alike have struggled to call it
something – dissolution, voluntary disassociation – anything other than secession.
All of this, taken together, has been thought to have both an empirical and a normative
basis: The fixity of borders produced greater stability, reduced inter-state violence, and
acted as a positive discouragement to illiberal nationalism and all its dangerous progeny,
such as intolerance, revanchism, war, ethnic cleansing, and genocide. Fixing states in
their historical borders – as one scholar recently put in, “the ‘locking in’ of different
groups within a single polity provides the State with relative permanence and stability
and conveys to the different ethnic groups within the State the idea that, from an
*
Associate Professor, Indiana University School of Law – Bloomington. JD, Harvard Law School; MIA,
Columbia University; BA, UCLA. Sections of this draft – especially Part I – draw from Timothy William
Waters, Contemplating Failure and Creating Alternatives in the Balkans: Bosnia’s Peoples, Democracy, and
the Shape of Self-Determination, 29 Y
ALE
J. I
NT
’
L
L. 423 (2004). Thanks to Prof. Paul Brass, Prof Zsuzsa
Csergő, Dr. Carsten Wieland, Dr. Yuval Shany, and audiences for talks at Indiana University, Hebrew
University, the University of Illinois and the Association for the Study of Nationalities for comments on drafts
of this paper.
1
Self-determination has been recognized as a problematic category since the beginning, and thinking on self-
determination is broad and diffuse – indeed, two premises of this project are that ethno-national actors are
making heterodox claims, and that the field is in flux, both of which imply diversity of views – but the range of
universal agreement and acceptance is actually narrow – one of the few agreed points is that the right surely
adheres in colonies – and it is this I am calling the ‘canon.’ For example, whatever else its diffuse content, the
‘canon’ of accepted arguments has – until the Canadian Supreme Court’s Quebec reference – excluded serious
consideration of non-consensual sub-state secession on ethnic grounds.
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