CIAO DATE: 11/2008
June 2005
Institute on Globalization and the Human Condition, McMaster University
The concept of autonomy is a remarkably complex one. It can be spoken of in collective or individual and personal forms. It is an analytical concept employed for the investigation of various forms of self government and self determination in social science disciplines. Literary, cultural studies, and philosophy scholars have deconstructed the concept and its uses to question gendered, ethnic, racial, Eurocentric Enlightenment and other assumptions inherent in its use. As a part of societal discourse across the globe, it is also not surprising that the concept is incorporated in various ways into law. Incorporation into law can provide a basis for legal claims to rights, institutional supports, and other privileges, obligations, and statuses.
In this working paper, Dr. Natalia Loukacheva, who holds a postdoctoral scholar's award with the Major Collaborative Research Initiative "Globalization and Autonomy", investigates the status of the concept of autonomy in law. In particular, she examines its place in international public law and comparative constitutional law. She is interested here in a notion of autonomy as equivalent to self-government in the context of an internal right to self-determination. She is not focusing on an external right to self-determination as exercised through secession.
Her analysis is divided into two parts. In the first section of the paper, she considers general approaches to reflection on, and recognition of, autonomy in international law and in comparative constitutional law. She argues that there are weak grounds for recognition of autonomy as a principle of international law and somewhat stronger, but still very limited, grounds for its recognition in comparative constitutional law. She also notes that the normative arguments in favour of its recognition do exist to some extent in law. Finally, she comments on the ambiguity of the concept of law, suggesting that this ambiguity provides flexibility for adapting its use to the particular circumstances of groups making autonomy claims.
The second section of the paper turns to a specific consideration of the place of autonomy for indigenous peoples in law. Here Dr. Loukacheva argues that there is an emerging right to indigenous peoples' autonomy, which is slowly being considered and recognized by international bodies. She adds, however, that the concept of autonomy lacks clarity. This feature, she suggests, can be an advantage. There is no need for a single type or model of indigenous peoples' autonomy - different forms of autonomy can serve varying indigenous groups' aspirations. This analysis is based on a wide range of examination of cases of autonomy, particularly in Europe and in the Arctic region.
In her conclusion, Dr. Loukacheva sketches out some common characteristics that any autonomous arrangement should satisfy. This analysis arises from her studies of case law in the area. She also stresses that autonomy in law is not a static concept, but a dynamic one. It can be best comprehended by moving from a de facto analysis of autonomy towards its evolving de jure recognition. The idea is that despite existing legal instruments or legislation, analysis of autonomy from the bottom up reveals that the scope of the concept of autonomy is changing and gradually these changes lead to pressures for more recognition at the de jure level
Resource link: On Autonomy and Law [PDF] - 154K