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Durham E-Theses Durham E-Theses Towards a Human-Centred International Law: Self-Determination and the Structure of the International Legal System SPARKS, THOMAS,MATTHEW,SMITH How to cite: SPARKS, THOMAS,MATTHEW,SMITH (2017) Towards a Human-Centred International Law: Self-Determination and the Structure of the International Legal System, Durham theses, Durham University. Available at Durham E-Theses Online: http://etheses.dur.ac.uk/12408/ Use policy This work is licensed under a Creative Commons Attribution Non-commercial No Derivatives 3.0 (CC BY-NC-ND) Academic Support Oce, Durham University, University Oce, Old Elvet, Durham DH1 3HP e-mail: [email protected] Tel: +44 0191 334 6107 http://etheses.dur.ac.uk 2 Towards a Human-Centred International Law: Self-Determination and the Structure of the International Legal System Thomas Matthew Smith Sparks Thesis submitted for the degree of Doctor of Philosophy Durham Law School Durham University Palatine Centre Stockton Road Durham 2017 Abstract In recent years a number of scholars (most notably Anne Peters, Christian Tomuschat, Ruti Teitel and Antônio Augusto Cançado Trindade) have identified an ongoing process of change in the international legal system’s relationship with individuals and groups of individuals. That change has been referred to as a humanisation of international law. This thesis contributes to that area of study by offering an account of the deep level changes to the foundations of the international legal system, which it argues are both driving and are recursively driven by changes in substantive international law. It finds the explanation for these changes in the idea of the self-determination of the individual, and it argues that this concept has now become a structural principle (a term borrowed from Giddens, 1984) of the international legal system. The thesis takes a twin methodological approach to the question, using both an analysis of the history of ideas and a sociological lens (particularly Giddens’s theory of structuration) to demonstrate that the foundations of the international legal order have changed through time, and that the operation and scope of the system’s basic concepts has altered concomitantly. It argues that the institution of a principle of self-determination as the structural principle of the system is another such change, and one that will produce the kind of changes in the substance and operation of international law that have been identified by Peters and others. Its finding that the interests of individuals and of communities are now embedded in international law at the structural level strongly supports the conclusion that Peters and others have drawn from the examination of substantive international law, that there is a process of humanisation occurring, and that the humanisation process is occurring at all levels within the system. i Acknowledgements I owe a great many thanks to a great many people, without whom the process of researching and writing this thesis would not have been so enjoyable and rewarding, or would not have been possible at all. First and foremost, to my parents and sister, for their love and support. I owe a great deal to my colleagues, past and present, from Durham University, for their friendship, and for many conversations and discussions which have helped me to clarify my thinking on any number of issues. Particular thanks go to Dr Konstantina Tzouvala, Professor William Lucy, Dr Andrés Delgado Casteleiro, Dr Henry Jones, Ms Verity Adams, Mr Kyle Murray and Ms Eszter Harsanyi-Belteki. I also wish to thank the participants in seminars in the Global Policy Institute of Durham University and the International Law Discussion Group of Edinburgh University, and attendees at my presentations at the 2016 SLSA Annual Conference, and the 2017 IVR World Congress, where sections of the argument of this thesis were presented. I am grateful to the Max Planck Society for funding which enabled me to spend a very enjoyable and productive six weeks at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg. I owe my most profound thanks to my supervisors, Professor Robert Schütze and Dr Gleider Hernández, in particular for their unfailing support and encouragement, their generosity, and their robust (but always constructive) criticism. Needless to say, all remaining errors and infelicities are my responsibility alone. The research leading to this thesis has been supported by funding from the European Research Council under the European Union’s Seventh Framework Programme (FP/2007-2013) – ERC Grant Agreement n. 312304. Statement of Copyright The copyright of this thesis rests with the author. No quotation from it should be published without the author's prior written consent and information derived from it should be acknowledged. Outline Table of Contents Abstract .................................................................................................................................... i Acknowledgements .................................................................................................................. ii Statement of Copyright ............................................................................................................ ii Outline Table of Contents ....................................................................................................... iii Detailed Table of Contents ..................................................................................................... iv Table of Cases ...................................................................................................................... viii Table of Instruments ................................................................................................................ x Table of Abbreviations .......................................................................................................... xii Introduction ........................................................................................................................... 1 Part One ............................................................................................................................... 30 Self-Determination I: Evolution and Taxonomy of a Genus .......................................... 31 Self-Determination II: Judicial Treatments of Self-Determination 1945-Present ........ 94 Part Two ............................................................................................................................. 140 Sovereignty, Obligation, and Self-Determination ........................................................... 141 Statehood, Personality and Self-Determination .............................................................. 196 Peremptory Normativity and Self-Determination .......................................................... 240 Conclusion .......................................................................................................................... 279 Bibliography ........................................................................................................................ 295 Detailed Table of Contents Abstract .................................................................................................................................... i Acknowledgements .................................................................................................................. ii Statement of Copyright ............................................................................................................ ii Outline Table of Contents ....................................................................................................... iii Detailed Table of Contents ...................................................................................................... iv Table of Cases ...................................................................................................................... viii Table of Instruments ................................................................................................................. x Table of Abbreviations .......................................................................................................... xii Introduction ........................................................................................................................... 1 1. Towards a Human-Centred International Law .................................................. 3 2. The Idea of Self-Determination .......................................................................... 7 3. Methodology ...................................................................................................... 12 2.1 Historical ................................................................................................................. 14 2.1.1 Begriffsgeschichte ............................................................................................ 14 2.1.2 Painted History ................................................................................................. 16 2.2 Sociological ............................................................................................................. 21 2.2.1 Structuration Theory ......................................................................................... 21 2.2.2 The Structural Properties of the International Legal System ............................ 23 4. The Argument ..................................................................................................
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