Abstract:
The human rights regime, with its emphasis on individual rights and the liberal democratic state, is failing to fully protect the rights and legal personality of certain transnational and mixed residential minorities and indigenous populations. As a result of this failure and their history of subjugation, these groups should be entitled to remedial self-determination. Traditionally, however, the international community of states has limited the right to self-determination to pre-specified former colonies because they fear secession and the breakup of their territorial sovereignty. To overcome that barrier, self-determination must expand both in its inclusiveness and its possible outcomes. This paper advocates a non-territorial form of statehood for transnational/mixed-residential minority and indigenous populations experiencing human rights abuse or notable exclusion from international law. Combining models of non-territorial autonomy with the goals of secession, landless states would provide an innovative multilevel governance solution that recognizes the right of these groups to exercise moral agency internally and externally. Landless states would have full legal personality in the international community yet not be tied to a specific, contiguous territory. The idea leads to a reconception of the state as exercising citizen-sourced, rather than territorial sovereignty. This paper focuses primarily on the Roma of Europe with a parallel discussion of American Indian Tribal Nations in the United States for illustrative purposes. The proposal could be adapted to various situations where remedial self-determination is required but territorial solutions are unsuitable.
