Categorising Self-Determination: Four Forms
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Categorising Self-Determination: Four Forms
Hernández, Gleider | Sparks, Tom
German Yearbook of International Law, Vol. 63 (2020), Iss. 1 : pp. 223–254
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Gleider Hernández, Professor of Public International Law, KU Leuven & Open Universiteit.
Tom Sparks, Senior Research Fellow, Max Planck Institute for Comparative and Public International Law, Heidelberg.
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.
Table of Contents
| 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 |