Year: 2020
Author: Hernández, Gleider, Sparks, Tom
German Yearbook of International Law, Vol. 63 (2020), Iss. 1 : pp. 223–254
Abstract
International law has a self-determination problem. The paradoxes raised by the concept, almost like a Russian doll, beget ever more paradoxes. Yet, when pressed for clarity as to its scope, scholars, practitioners, and legal advisers all shy away from precise definitions. Based on the apparent collision of competing claims, self-determination is reduced to a claim to create a new State; territorial integrity is viewed as a necessary protection for existing political units. A neat binary is constructed whereby self-determination is reduced to instances where it does not affect territorial integrity (so-called ‘internal self-determination’) and those where it disrupts it significantly (‘external self-determination’). The self-determination/territorial integrity binary, though taught widely in international law textbooks, doctrine, and practice, is deceptively simple and fails to tell the whole story; it is for this reason that we propose a different way of conceptualising self-determination claims in international law. In this piece, we will develop an argument that the concept of self-determination is in fact a category, a genus, of which there exist four distinct forms, or species: polity-based; identitarian; remedial; and colonial. We argue that by rethinking self-determination in this manner, the common features of these four forms help us further to give content to the concept, as well as better to understand the different legal treatment that self-determination claims have received within international law.
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Journal Article Details
Publisher Name: Global Science Press
Language: English
DOI: https://doi.org/10.3790/gyil.63.1.223
German Yearbook of International Law, Vol. 63 (2020), Iss. 1 : pp. 223–254
Published online: 2020-01
AMS Subject Headings: Duncker & Humblot
Copyright: COPYRIGHT: © Global Science Press
Pages: 32
Keywords: Constituent Power Decolonisation Peoples Self-Determination Secession Sovereignty Statehood
Author Details
| Section Title | Page | Action | Price |
|---|---|---|---|
| Gleider Hernández and Tom Sparks\nCategorising Self-Determination: Four Forms | 223 | ||
| I. An Enigma Wrapped in a Riddle Wrapped in a … | 223 | ||
| II. A Defence of Categorisation: Why Taxonomy Matters | 226 | ||
| A. Taxonomy as Doctrine – Making Sense of Reality | 226 | ||
| B. A Taxonomy of Self-Determination: A Species | 229 | ||
| III. Terminology: What is Self-Determination? | 230 | ||
| A. The Meaning of Self-Determination | 230 | ||
| B. International Law and the Internal-External Binary of Self-Determination | 223 | ||
| 1. ‘Internal’ Self-Determination | 223 | ||
| 2. ‘External’ Self-Determination | 223 | ||
| IV. Beyond the Binary: Four Forms of Self-Determination | 223 | ||
| A. Polity-Based Self-Determination | 223 | ||
| B. Identitarian Self-Determination | 223 | ||
| C. Remedial Self-Determination | 224 | ||
| D. Colonial Self-Determination | 224 | ||
| V. Categorisation as Creation: Concluding Reflections | 225 |