Self-Determination in International Mediation: Some Preliminary Reflections

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Cardozo J. Conflict Resol., Vol: 7, Page: 277

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Nolan-Haley, Jacqueline
FLASH: The Fordham Law Archive of Scholarship and History
self-determination; informed consent; Dispute Resolution and Arbitration; International Law; Law; Law and Society
article description
Few concepts have generated as much discussion in the post-war international legal system as that of “self-determination.” Scholars debate the proper identity of the "selves" endowed with this right, its boundaries, and its normative relevance. When the focus turns to mediation, the discussion becomes murky because the concept of self-determination has both procedural and substantive components, and is noticeably different in the private and public sectors. The generic concept of self-determination relates to ideas of democratic governance and the Enlightenment belief that legitimate government depends upon the consent of the governed. As adapted to private mediation theory, the right of self-determination allows parties to participate in decision making and voluntarily decide the outcome of their disputes. This understanding of self-determination is rooted in the philosophical principle of personal autonomy and is expressed through the legal doctrine of informed consent. The simple version of the normative story states that those who are affected by a dispute should voluntarily consent to the outcome of that dispute. In short, "party" self-determination in mediation gives ownership of the conflict to the disputants.