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Hernández, GSparks, T (2020). Categorising Self-Determination: Four Forms. German Yearbook of International Law, 63(1), 223-254. https://doi.org/10.3790/gyil.63.1.223
Hernández, Gleider Sparks, TomHernández, Gleider Sparks, Tom (2020). "Categorising Self-Determination: Four Forms" German Yearbook of International Law, vol. 63no. 1, 2020 pp. 223-254. https://doi.org/10.3790/gyil.63.1.223
Hernández, GSparks, T (2020). Categorising Self-Determination: Four Forms. German Yearbook of International Law, Vol. 63 (Issue 1), pp 223-254. https://doi.org/10.3790/gyil.63.1.223

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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