Rolf Nichelmann, Alexander Paquée
March 12, 2016
Legal instruments of minority protection, especially the so-called models of autonomy, are often discussed in the context of a central principle of international law, a people's right to self-determination. In legal discourse, this principle simultaneously serves as a justification and as the point of reference which - or so it is hoped - will provide dogmatic guidance. This applies particularly to the specification of the contested notions of ‘a people’ and national minority. Unfortunately, the legal argument runs into a dead end here. It can neither escape the tautological structure of the concept of ‘a people’ (‘imagined community’) nor of the circular interplay between the concepts of ‘a people’ and ‘self-determination’. Using a systems-functionalist approach, we demonstrate that - assuming democratic conditions and constitutional guarantees are warranted - the problem will not be found in a violation of standards of nondiscrimination. Instead, the dogmatic impasse results from the fact that ethnic semantics refer to danger attributions in the political system. As a result, the legal system becomes infected with an alternative form of time binding which cannot readily be built into its form of conditional programming.