Claryfiying the Norm, Exposing the Structure: Thoughts in Response to Jha

In her contribution to the 17^th of September, Himani Jha reviews my 2023 Hart monograph, Self-Determination in the International Legal System: Whose Claim, to What Right?. Jha engages with the book closely and generously, and I’m grateful to her both for her kind words about the book, and for her substantive critique. I regard the gaps identified as real; the criticisms, broadly, as fair. I am pleased to have this opportunity to share a few thoughts on the work prompted by, rather than in response to, the review.

A Simple, Preliminary Enquiry

In Self-Determination in the International Legal System, I set myself the task of clarifying the ambit and legal status of self-determination. The book is an expanded and reworked version of the first half of my PhD thesis, which I wrote at Durham University between 2013 and 2017. I mention the date intentionally, and those familiar with the context will understand why, when I point out that I was a Scottish student who had chosen to write about self-determination at an English university. I am referring of course to the referendum on the independence of Scotland from the United Kingdom, which took place on the 18^th of September, 2014.

With the pro- and anti-independence campaigns gearing up as I started to write, I was fully caught up in the excitement of the referendum. I was an enthusiastic supporter of independence (for political rather than nationalistic reasons), and was intending a thesis which would defend the idea of a right to secede under international law. Self-Determination in the International Legal System began life almost as a side project – a first step. Before I could embark on my main project, I told myself, I needed to clarify the status of self-determination in international law.

By the time I had read my fifth or sixth (or fifteenth or sixteenth) piece on ‘internal’ and ‘external’ self-determination, I realised that my simple, preliminary enquiry would be more taxing than I had anticipated. As I discuss on pages 12-19 of the book, this literature had a number of failings to my way of thinking. Many authors used the terms ‘internal’ and ‘external’ self-determination without reflecting deeply on their meaning; often however subtly differing from each other in the ways they applied or understood those terms. Among those who did explore the terms deeply, there was often little agreement on the ambit of ‘internal’ versus ‘external’ self-determination, their definitions, their fields of application, their historical roots, their underlying logic, and more or less everything else. Gradually, my focus narrowed from the lege ferenda arguments I had hoped to make around secession, to the lex lata; or rather, to mangle a phrase, to conceptus lata:  what actually is self-determination, and what does it mean?

History and Precedent

Influential in my thinking about how to come to grips with this subject-matter was Anne Orford’s excellent 2013 paper, ‘On International Legal Method’. There, Orford noted that a lawyer studying the past ‘is not concerned with the past as history but with the past as law’ (p. 177). This is because:

“…the study of international law requires attention to the movement of meaning. International law is inherently genealogical, depending as it does upon the transmission of concepts, languages and norms across time and space. The past, far from being gone, is constantly being retrieved as a source or rationalisation of present obligation.” (p. 175)

Without claiming any great degree of fidelity to Orford’s methodology, I found these observations remarkably helpful in seeking to frame my own problem. Guided in particular by the works of historians such as Hobsbawm and Armitage, I saw this pattern, past claims to self-determination being ‘retrieved as a source or rationalisation of present’ claims, being repeated in self-determination. Orford links this pattern to the concept of legal precedent, and it was from these foundations that I sought to construct my precedential history of self-determination. Although the work is for the most part organised chronologically, in many ways its logic is reverse-chronological: a precedential approach to history begins with the present and works backwards, seeking to identify the actual sources of authority cited, considered, or tacitly referenced, and so uncover a red thread of legitimacy-claims reaching back into the past. It seeks to answer the question: when we invoke self-determination now, what do we call upon for authority, even if we do so implicitly? And in turn, when invoked on that prior occasion, what even earlier utterance gives the shape to the concept we are invoking?

A precedential approach to history is useful in seeking to elucidate those genealogies of authority, and I believe it was apt to the challenge of unravelling the four different chains of reasoning I ultimately identified within the term self-determination. But it comes with certain disadvantages, and among them is blindness towards the road not travelled. Precedential history, by definition, is primarily interested in the sources which establishment legal institutions regard as relevant: to the extent that modern rulings and other documents (such as the pronouncements of the ICJ, resolutions of the Security Council, or the decisions of domestic courts) refer to a Eurocentric, western-dominated set of sources and historical events in their search for authority, those (and their predecessors in turn) are the sources which will be of interest to a precedential account.

Jha’s comment, that ‘Sparks’s analysis […] prioritises doctrinal clarification and judicial reasoning [which] tends to foreground the internal logic of legal categories over the political and historical conditions that produced them’, is to this extent correct. In this book, I have produced a highly conventional account of what may be international law’s most seditious concept, and the irony is not lost on me. However, I continue to believe that the methodological choice of a precedential approach was apposite. By tracing those existing threads of reasoning, I was able to identify four distinct appeals to authority and in so doing have, I hope, offered a more coherent framework both for reading self-determination’s history, and for understanding the ways in which it interacts with international law in the present.

Similarly, when Jha comments that:

“For instance, the typology’s elevation of polity-based self-determination as the most consolidated form of the norm reflects the internal functioning of established states. Yet many such states are themselves products of colonial boundary-making. Conversely, remedial secession is presented as tightly constrained and exceptional, but the structural conditions that make its thresholds nearly insurmountable remain underexplored. The distribution of doctrinal stability across categories mirrors, perhaps unintentionally, the distribution of authority in the contemporary international order.”

I am prompted to reply: yes, and this was not unintentional. It was my explicit project to disambiguate the categories of self-determination, such that I could identify the current nature and status of each under international law as it is now.

That is not to say that I regard a critical reassessment of the power imbalances and systematic marginalisation of peoples which have shaped international law in general, and the self-determination genus in particular, as less valuable, urgent, or needed than the enquiry I have pursued in this book: quite the contrary. The invocation of self-determination at any given moment is a crystallisation of power, both intra- and inter-polity. The questions of whether international law can or should regulate those moments, in what ways, and how it has come to play its present role, are in my view perhaps the most fundamental questions of our discipline. They call into question the concept of the State and the concept of the people, the mediating function of the State on the international plane, and the ways in which international actors use the law as a gatekeeper to include and exclude – to name only a few. It is appropriate and necessary that such questions be interrogated through TWAIL, other critical, and broader legal-theoretical lenses, to expose the power imbalances they entrench, and the choices they conceal. I did not see this interrogation as the task of my book, however. Rather, I intended that this book would take the preceding step.

The Function of Categorisation

In Self-Determination in the International Legal System, I argue that self-determination has been subject to a notable failure of categorisation, one which actively impedes analysis. Where unlike claims are grouped together and like claims are separated, the object of analysis becomes unstable. Not only are such concepts legally unusable—as likely to lead putative claimants astray as to provide a means to engage the law in their own case—but they resist critique. Where the content of the concept is contested, shifting, and internally inconsistent, critique has nothing definite to attach to – and too often misses its mark. The familiar language of ‘internal’ and ‘external’ self-determination has not merely produced terminological imprecision; it has obscured the different legal logics, histories, claimants, and remedial structures that operate within the broader genus. Clarifying those distinctions is therefore not a substitute for critical analysis, but a condition of making such analysis more meaningful.

In the book’s first chapter, I cite George Lakoff (1987), the noted cognitive linguist. He observed that ‘Categorization is not a matter to be taken lightly. There is nothing more basic to our thought, perception, action and speech’ (p. 5). Here, Lakoff is contributing to a discourse which spans philosophy, sociology, linguistics, psychology, neurology, and epistemology: categories, it is widely accepted, are an essential aspect of knowledge. The singular thing (object, person, norm, or concept) falls within a category, and only by correctly recognising which categories it falls into (and which it does not) is it possible to explain what something is uniquely; which of its features are shared with other things sufficiently closely that these should be grouped together, and which of its features mark it as different. To categorise is to understand; to understand is to categorise. By extension, what we cannot properly categorise, we cannot analyse or critique – or so my argument goes.

Here, then, is my only divergence with Himani Jha. Jha comments that ‘[a]pproaching self-determination primarily as a matter of legal classification foregrounds its internal doctrinal logic, while leaving comparatively less space to interrogate the historical and political conditions under which those categories emerged’; and later, that the work ‘reflects a broader marginalisation of critical voices that seek to challenge the inequities embedded in international law itself’. I fervently hope that this is not the effect. Far from reducing the space available for engagement with self-determination, including from critical standpoints, the project was intended from the outset to do the opposite. Originally conceived as a preliminary to my own critique of self-determination—something not contained in this volume—it was intended to create the conditions, the space, for further critical engagement with these nebulous yet intensely charged concepts.

Conclusion

By clarifying the scope, status, and nature of the norms of self-determination, I hope that Self-Determination in the International Legal System will make those concepts more visible and more susceptible to analysis, as well as more coherent in their application. If the taxonomy does indeed provide a vehicle for sharper and more meaningful engagement with self-determination, by disambiguating its categories and making clearer how their contingent histories, political choices, and internal tensions mediate, constrain, or deny individuals’ and communities’ political identities and aspirations, I will regard the project as a success.