Demokratische Selbstbestimmung? Zum Verhältnis von staatlicher Integrität und Gruppenrechten im Völkerrecht
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The constitutionalization of international law over recent decades has been marked by the fading of formal categories, chiefly among them territorial sovereignty and equality of states, and, vice versa, the emergence of value-oriented concepts which focus on the claims of democracy and democratic self-determination. This new law-cum-value approach sometimes ignores that it creates its own conflicts and contradictions. These leave not only the international legal order but also importantly, at their interface, the domestic sphere in a puzzling state of ambiguity. This especially holds true for the concept of self-determination, which, for one thing, has never cut its difficult relation with sovereignty. Just as the latter, self-determination fends off external intervention at every level (political, military, economic, or cultural). At the same time, it releases a destabilizing force breaking up the protected boundaries of the sovereign state. International legal scholarship is more at ease with what is referred to as the internal dimension of self-determination: Self-governance and constitutional autonomy. It is the basis for the argument for an international right to participation and democratic organization of any domestic and international order. However, this argument might prove just as formalistic as classic international law and ignorant over the values that are needed in the first place to have polities incorporate democratic standards as universal. To communicate these is a legitimate strategy, and the by now famous discourse of world courts (domestic and international ones) is an important instrument on this way. Yet a democratic discourse between some is different from a legal obligation for all. The right of self-determination is no right to democracy. To insist regardless may indeed risk trading away the sensitive balance that has otherwise been reached by international human rights and minority rights law fuelled individual rights, on the one hand, and group rights, on the other. An extensively democratic interpretation of traditional international legal concepts may, in other words, cause the exact opposite of what the democracy claim ultimately stands for: a more democratic international legal order.