Books by Tom Sparks
This open access book brings conceptual clarity to the study and practice of self-determination, ... more This open access book brings conceptual clarity to the study and practice of self-determination, showing that it is, without doubt, one of the most important concepts of the international legal order. It argues that the accepted categorisation of internal and external self-determination is not helpful, and suggests a new typology. This new framework has four categories: the polity-based, secessionary, colonial, and remedial forms. Each will be distinguished by the grounds, or the legitimacy-claim, on which it is based. This not only ensures consistency, it moves the question out of the purely conceptual realm and addresses the practical concerns of those invoking self-determination. By presenting international lawyers with a typology that is both theoretically consistent and more practically useful, the author makes a significant contribution to our understanding of this keystone of international law.
Open access: https://www.doi.org/10.5040/9781509945092
Papers by Tom Sparks
As climate negotiations fail to deliver the progress that States, activists, and others desire to... more As climate negotiations fail to deliver the progress that States, activists, and others desire to see in tackling climate change, attention is rapidly turning to potential legal responses. This paper investigates the potential of the ICJ’s contentious procedure as a forum for climate-related complaints, and focuses in particular on the provisional measures phase of a case. We consider the potential for a climate-related application for interim protection to meet the test set down by the Court for the issuing of a provisional measures order: prima facie jurisdiction, plausibility, and an urgent risk of irreparable prejudice. We conclude that a carefully constructed climate application could meet these criteria, but that it would be important to foresee and take account of a future application for interim protection from the outset in designing a case.
Forthcoming in: Law and Practice of International Courts and Tribunals (exp. 2023).
Nordic Journal of International Law, 2022
In Monetary Gold Removed from Rome, the International Court of Justice first articulated the “Mon... more In Monetary Gold Removed from Rome, the International Court of Justice first articulated the “Monetary Gold rule”: the principle that it cannot rule on cases in which the conduct of a State not party to the proceedings forms the “very subject-matter” of the dispute. That principle is taken to be a fundamental rule of international law, deriving its force from the sovereignty of States and the nature of the international legal system.
This article will dispute that claim, and will argue that the principle of consent underpinning Monetary Gold is an empty formalism. Through a comparison of the Court’s approach in its contentious and advisory jurisdictions, it will ask to what States consent and for what purpose they do so, when they “consent to jurisdiction”, and no satisfactory answer will be found. It will conclude that the focus on consent in international adjudication is discretionary.
This is an open access article distributed under the terms of the cc by 4.0 license.
Journal of Human Rights and the Environment, 2020
Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper Series, 2018
Available via: https://dx.doi.org/10.2139/ssrn.3248910
This paper discusses the potential of ... more Available via: https://dx.doi.org/10.2139/ssrn.3248910
This paper discusses the potential of a human rights framework to contribute to the growth and development of global animal law. Parts one and two of the essay take as their example the jurisprudence of the European Court of Human Rights, and examine the major trends in the Court’s judgments and admissibility decisions that directly or indirectly concern the rights or welfare of animals. It is concluded that the Court is not indifferent to the welfare of animals, but that animal welfare is instrumentalised: it is understood not as a good in itself, but is instead valued for its implications for human welfare and rights. Part three of the essay then considers the obstacles that the anthropocentrism of the human rights idea and the instrumentalisation of animal concerns present to the use of human rights frameworks to further the development of global animal law, as well as the opportunities that exist in the meeting of these paradigms. It concludes that although the telos of human rights law is different from that of animal law, nevertheless there exist many overlapping concerns within which mutually beneficial interactions are possible.
Jean d’Aspremont and Sahib Singh (eds.) 'Concepts for International Law: Contributions to Disciplinary Thought' (Elgar), 2019
The State is one of the central concepts of the contemporary international legal system: it is om... more The State is one of the central concepts of the contemporary international legal system: it is omnipresent in international legal scholarship and practice. Direct references to the system's subject-legislators are ubiquitous, but perhaps even more significant are the innumerable indirect references made to the idea by way of the multitude of concepts which allude to or draw meaning from it. In these ways the concept of the State structures the international legal system, and three of those struc-tural functions are discussed in this chapter: personification, delineation, and identifi-cation. It will argue that these functions, operationalised by international lawyers, de-fine the limits of the international legal system's reality, transforming fluid socio-political processes into a legal "truth" which exists in a conceit of timelessness. In so doing, the concept of the State (to borrow from Giddens) both enables and constrains the international legal system.
in Tahseen Jafry (ed.), Routledge Handbook for Climate Justice, 2018
The submergence of a State was, until recently, an almost unthinkable idea for international law.... more The submergence of a State was, until recently, an almost unthinkable idea for international law. Although States may lose personality or disintegrate, the physical loss of a State’s territory has only begun to be contemplated in the context of catastrophic climate change. As the global climate warms, increasingly frequent and severe storm events and sea level rise will render the territories of low-lying coastal and small island States uninhabitable, or may submerge them altogether.
This chapter evaluates the dominant theory of statehood, and argues that the paradigm is unable to meet this new reality. In a time of rising seas and sinking islands its limited conception of territory as an immutable, fixed point of reference will become increasingly damaging to the coherence of the idea of the State, and to the rights of the individuals most adversely affected. Instead the chapter argues that it is necessary for our understanding of statehood to undergo an anthropic shift. Such a shift would parallel our developing Anthropocene-consciousness, or our awareness of the effects human activity is having on environmental systems; and would diminish the importance of territory in the conception of the State, focusing instead on the existence of a coherent socio-political community.
Drafts by Tom Sparks
MPIL Research Paper Series No. 2020-42, 2020
The COVID-19 pandemic has posed an unprecedented governance challenge, with governments resorting... more The COVID-19 pandemic has posed an unprecedented governance challenge, with governments resorting to very different (legal) strategies to respond to the health emergency. A rich literature is already dedicated to measures adopted in individual States. This article adds an original comparative contribution to that literature by exploring the influence of specific constitutional features on the legal response to the pandemic and how, in turn, these responses have the potential to reconfigure the institutional frameworks in place. Our analysis shows that both constitutional contexts and legal traditions significantly matter in pandemic times, in particular when it comes to the rule of law credentials of measures adopted.
We focus our study on measures taken during first six months of the pandemic (the “first wave”) in four European jurisdictions with significantly different constitutional settlements; namely France, Germany, Italy, and the United Kingdom. Following a contextual approach, the comparative analysis concentrates on four macro-issues: 1) the legal bases of adopted measures; 2) the horizontal allocation of power; 3) the vertical allocation of power; and 4) the role of the judiciary, especially in terms of fundamental rights protection. Across all four analytical categories, constitutional and institutional factors – such as the respective forms of government, vertical power conflicts, presence of pre-existing emergency schemes or legal doctrines, and the structure of the judicial systems – significantly impacted the (legal) path taken in the four jurisdictions under scrutiny and, importantly, reinforced pre-existing patterns of institutional shifts or social and political tensions. In particular, the role of two institutional features generally overlooked in the literature on the matter emerged: the concrete functioning of the vertical allocation of power and the reciprocal relationships between different jursdictions within judicial systems. By these means, this article aims to broaden and enrich the analytical toolkit of the literature concerning the relationship between states of emergency and specific forms of constitutional government and State.
Invocations of self-determination are commonplace in international affairs, and are seen as occup... more Invocations of self-determination are commonplace in international affairs, and are seen as occupying an important position in the international legal system. The International Court of Justice (ICJ) has declared the right of peoples to self-determination ‘one of the essential principles of international law’, and has stated that it is a norm of erga omnes character (Case Concerning East Timor, [29]), and it has even been argued that the concept has acquired ius cogens status (Cassese, 1995, p. 140). Nevertheless, the dark side of the concept cannot be denied: as Duursma has noted, ‘practically all’ armed conflicts relate to the exercise of self-determination (1996, p. 1), and it is not uncommon to see the concept invoked as a justification-claim for radically different outcomes. Rather than casting the concept into doubt, however, these circumstances should be taken to show yet more strongly that it is widely seen by those claiming it as powerful source of legitimacy for their cause.
This paper will argue that the widely used internal/external framework of classification of self-determination claims is not able to capture the complexities of the usages of the concept or of the different legitimacy-claims that it can represent. In focussing only on the outcomes sought it treats self-determination claims as a species: as of a single kind, but exhibiting perhaps different behaviours. It collapses the many types and sources of justification to which the concept variously refers, and thus inhibits the ability of the international legal system to distinguish between types of self-determination claims.
By contrast, this paper will present a four-part taxonomy of such claims as distinct species within a self-determination genus. It will be argued that although the four kinds of self-determination claims—political, colonial, remedial and secessionary—share a deep root, they nevertheless have different ideational and historical foundations. The forms therefore rely on different justification narratives, and represent invocations of different principles. Thus, for example, although both seek as outcome the displacement of sovereignty, the principles underlying a claim to colonial self-determination and a claim to remedial self-determination are sufficiently different that they cannot be meaningfully compared, let alone equivalentised.
That conclusion has, of course, significant implications for the international legal system. In rendering both the forms and the justification narratives of self-determination claims more readily distinguishable, it enables claims of different kinds to receive different legal treatment. There are indications that, in the coming years, the already significant role self-determination plays in international affairs may increase, including in some of the most unstable and contested regions of the world. A renewed focus on the idea of self-determination and of the claims it can represent is therefore timely.
Conference Presentations by Tom Sparks
Available via: http://prezi.com/k998eltz7jdg/
In order for an international Court to grant int... more Available via: http://prezi.com/k998eltz7jdg/
In order for an international Court to grant interim protection (provisional measures), it should first satisfy that the party seeking protection has at least a plausible claim to the rights in question. So says, at least, the doctrine of plausibility, a relatively modern development in the criteria for the granting of provisional measures, but nonetheless one that now appears to be well-entrenched. But what standard does plausibility denote? This paper will trace the introduction and development of plausibility as a key criterion in provisional measures cases, and will discuss its various interpretations.
Although plausibility was first introduced as a low standard intended only to exclude weak or speculative requests for interim protection, it evolved to require a meaningful—albeit provisional—analysis of the applicant party’s claim. Recent developments, however, have seen a retreat from the higher standard, and in some recent cases the plausibility assessment could better be characterised as a possibility assessment.
This paper will consider the rationale of plausibility, and its changing use over time. In particular, it will ask whether plausibility is bifurcating, creating a situation in which one—strict—version of the plausibility assessment is applied where most categories of States’ rights are concerned (plausibility as a reasonable prospect of success), and another—lower—standard is applied to situations where individual and group rights are at risk (plausibility as human vulnerability). The paper will focus on the case-law of the ICJ, where plausibility has been extensively discussed in orders and separate/dissenting opinions, and where some of the most exciting recent developments have taken place.
Invocations of self-determination are commonplace in international affairs, and are seen as occup... more Invocations of self-determination are commonplace in international affairs, and are seen as occupying an important position in the international legal system. The International Court of Justice (ICJ) has declared the right of peoples to self-determination ‘one of the essential principles of international law’, and has stated that it is a norm of erga omnes character (Case Concerning East Timor, [29]), and it has even been argued that the concept has acquired ius cogens status (Cassese, 1995, p. 140). Nevertheless, the dark side of the concept cannot be denied: as Duursma has noted, ‘practically all’ armed conflicts relate to the exercise of self-determination (1996, p. 1), and it is not uncommon to see the concept invoked as a justification-claim for radically different outcomes. Rather than casting the concept into doubt, however, these circumstances should be taken to show yet more strongly that it is widely seen by those claiming it as powerful source of legitimacy for their cause.
This paper will argue that the widely used internal/external framework of classification of self-determination claims is not able to capture the complexities of the usages of the concept or of the different legitimacy-claims that it can represent. In focussing only on the outcomes sought it treats self-determination claims as a species: as of a single kind, but exhibiting perhaps different behaviours. It collapses the many types and sources of justification to which the concept variously refers, and thus inhibits the ability of the international legal system to distinguish between types of self-determination claims.
By contrast, this paper will present a four-part taxonomy of such claims as distinct species within a self-determination genus. It will be argued that although the four kinds of self-determination claims—political, colonial, remedial and secessionary—share a deep root, they nevertheless have different ideational and historical foundations. The forms therefore rely on different justification narratives, and represent invocations of different principles. Thus, for example, although both seek as outcome the displacement of sovereignty, the principles underlying a claim to colonial self-determination and a claim to remedial self-determination are sufficiently different that they cannot be meaningfully compared, let alone equivalentised.
That conclusion has, of course, significant implications for the international legal system. In rendering both the forms and the justification narratives of self-determination claims more readily distinguishable, it enables claims of different kinds to receive different legal treatment. There are indications that, in the coming years, the already significant role self-determination plays in international affairs may increase, including in some of the most unstable and contested regions of the world. A renewed focus on the idea of self-determination and of the claims it can represent is therefore timely.
A semiotic approach has great potential—as yet not fully explored—to explain many of the vexed qu... more A semiotic approach has great potential—as yet not fully explored—to explain many of the vexed questions which beset the international legal system. Today’s international legal system, with its multiplicity of co-equal sovereignties and a disaggregated legislative power, is the product of an undirected and sometimes chaotic process of development over the course of several centuries. Rather than being designed by a controlling will or subject (by and large) to deliberate change, the structural elements of the system have recursively grown out of the actions, reactions and expectations of those interacting with it.
This paper will examine the potential that a focus on this recursive social creation has to advance our understanding of the international legal system. It will take as its example the concept of the State—at one and the same time perhaps the most ubiquitous and the most enigmatic of international law’s structural elements—and will examine the interplay between the social, the legal and the linguistic in defining and constituting States and statehood.
This paper will argue that States, although they have a great variety of manifestations and effects with the power vastly to affect each of our daily lives, are social institutions created and existing only (but not merely) through what Searle terms declarations. Seen in this light “State” is a non-ostensive reference. In fact, as this paper will argue, although States are often treated as unitary, the term “State” acts like Wittgenstein’s beetle in a box: viewed from different perspectives, different meanings of the term emerge. The internal and external viewpoints, in particular, offer two coextensive but non-equivalent views of the idea “State”, which I term the State(Polity) and the State(Person). Disentangling these nested ideas permits a more coherent analysis of State creation as a two-stage process effectuated through declaratory action and exhibiting what Giddens terms recursive social activity, governed by language rules.
The paper will thus explore the scope for a semiotic account of the State and its creation, and will argue that such an approach provides an alternative to the utopian/apologist tension identified in conventional politico-legal accounts.
In its 2008 Kosovo Advisory Opinion the ICJ was asked to pronounce on the legality of the Kosovan... more In its 2008 Kosovo Advisory Opinion the ICJ was asked to pronounce on the legality of the Kosovan declaration of independence from Serbia. The Court was, in effect, presented with a question of two competing legitimacies: whether the territory of Kosovo should be owned by the Serbian State or by the Kosovar population. The Advisory Opinion failed adequately to address either claim of ownership, and ultimately diminished both claims in favour of a solution applicable only to the facts of the Kosovo example.
The Court chose to construe international law as a system of negative obligations, failing to consider positive rights held by States, non-State actors or individuals. In so doing it cast State ownership of territory as relational rather than absolute, relevant only to a State’s interactions with other States. Concurrently, however, it refused to consider whether individuals or peoples were the owners of the territory in which they lived. It failed to address whether nations and peoples could have a right to secede territorially, instead construing secession as an act not prohibited nor enabled by international law.
The Court’s Opinion was recently “tested” in the Crimean conflict, and this paper will argue that it has failed to promote international stability. Rather, the Advisory Opinion has cast ownership of territory into doubt. No longer can it be said that States own territory, merely that they have a right to exclude other States therefrom. Nor, though, does ownership of a territory devolve to its inhabitants, and the Court established a legal regime which inhibits self-determination. In so doing it removed the ownership of territory from the preserve of law and relegated it to power politics, and may have made future Crimea-style conflicts more likely.
Talks by Tom Sparks
An update on recent events in the climate regime, and the connected entry into force of the Kigal... more An update on recent events in the climate regime, and the connected entry into force of the Kigali Amendment to the Montreal Protocol, given in the Referentenbesprechung of the Max Planck Institute for Comparative Public Law and International Law on the 11th February 2019.
An overview of four matters recently decided by the Internaitonal Court of Justice between Costa ... more An overview of four matters recently decided by the Internaitonal Court of Justice between Costa Rica and Nicaragua:
- Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua)
- Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica)
- Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua)
- Land Boundary in the Northern Part of the Isla Portillos (Costa Rica v Nicaragua)
Which communities have a right to self-determine? And what might the right to self-determination... more Which communities have a right to self-determine? And what might the right to self-determination entitle those who invoke it to do? These are amongst international law’s most persistent unanswered questions. Although self-determination has been a central issue in no fewer than five contentious cases and advisory proceedings before the ICJ, the questions which surround the concept seem to defy satisfactory resolution.
In the autumn of 2017 questions of self-determination will again come to the fore. The long-anticipated and intensely controversial independence referendum in Catalonia is scheduled for the 1st October, while a vote on the independence of Iraqi Kurdistan that could have significant consequences for the stability of the region is expected to take place on the 25th September. These events coincide with another opportunity for the ICJ to pronounce on self-determination, in the form of the advisory proceedings on the legality of the United Kingdom’s separation of the Chagos archipelago from its colonial possession of Mauritius prior to the latter’s independence.
This paper will discuss the forthcoming referenda in Catalonia and Kurdistan, and the situation of the Chagos Islands within a framework of a four-part typology of self-determination. It will place these events in the context of the history of self-determination claims, and will consider the legality of any potential secessions as well as the possible outcomes of the advisory proceedings. It will finish by considering the potential of these events to develop international law.
In the early hours of 24 June 2016 it was announced that the European referendum in the United Ki... more In the early hours of 24 June 2016 it was announced that the European referendum in the United Kingdom had returned a slim majority in favour of Brexit. The decision has been felt not least in Scotland, where calls for a second independence referendum have been heard with renewed force. The future of Scotland now seems highly uncertain, and the likely relationship between Scotland and the major treaty regimes of Europe in the event of independence is not the least of those uncertainties.
Newly independent States always face a future filled with imponderables, but the likely scope of their international law rights and obligations should not be among them. This paper will assess the rules on treaty succession applicable to bilateral, multipartite, membership and human rights agreements, and will highlight the gaps and uncertainties in the current law. In particular, it will discuss the crucial distinction between those multipartite treaties characterised as “multilateral”, and those characterised as “plurilateral”, and will offer a working definition of those terms. Finally, it will examine the major European treaties and set out the likely legal position of an independent Scotland under the TEU and TFEU, the EEA Agreement and the ECHR according to the international law of succession. In conclusion, the paper will argue that the timing of any Scottish secession would have a crucial bearing on the extent of the rights and obligations it can expect to enjoy and be subject to under the European treaties.
The concept of sovereignty is one of the foundation stones of the international legal order, and ... more The concept of sovereignty is one of the foundation stones of the international legal order, and its application continues to touch every aspect of international activity. Nowhere is its influence more obvious than in relation to the vexed questions that arise in cases of secession and other territorial re-organisations. Although sovereignty is seen as a necessary part of the international legal system, it represents a claim to unregulated power on the part of States which stands in tension with the existence of international law. This paper, part of work in progress, will revisit the philosophical justification of the concept and, in particular, the ‘argument from incoherence’, and will seek to show that the example of secession can aid in demonstrating that sovereignty lacks a coherent theoretical justification.
Published papers by Tom Sparks
Uploads
Books by Tom Sparks
Open access: https://www.doi.org/10.5040/9781509945092
Papers by Tom Sparks
Forthcoming in: Law and Practice of International Courts and Tribunals (exp. 2023).
This article will dispute that claim, and will argue that the principle of consent underpinning Monetary Gold is an empty formalism. Through a comparison of the Court’s approach in its contentious and advisory jurisdictions, it will ask to what States consent and for what purpose they do so, when they “consent to jurisdiction”, and no satisfactory answer will be found. It will conclude that the focus on consent in international adjudication is discretionary.
This is an open access article distributed under the terms of the cc by 4.0 license.
This paper discusses the potential of a human rights framework to contribute to the growth and development of global animal law. Parts one and two of the essay take as their example the jurisprudence of the European Court of Human Rights, and examine the major trends in the Court’s judgments and admissibility decisions that directly or indirectly concern the rights or welfare of animals. It is concluded that the Court is not indifferent to the welfare of animals, but that animal welfare is instrumentalised: it is understood not as a good in itself, but is instead valued for its implications for human welfare and rights. Part three of the essay then considers the obstacles that the anthropocentrism of the human rights idea and the instrumentalisation of animal concerns present to the use of human rights frameworks to further the development of global animal law, as well as the opportunities that exist in the meeting of these paradigms. It concludes that although the telos of human rights law is different from that of animal law, nevertheless there exist many overlapping concerns within which mutually beneficial interactions are possible.
This chapter evaluates the dominant theory of statehood, and argues that the paradigm is unable to meet this new reality. In a time of rising seas and sinking islands its limited conception of territory as an immutable, fixed point of reference will become increasingly damaging to the coherence of the idea of the State, and to the rights of the individuals most adversely affected. Instead the chapter argues that it is necessary for our understanding of statehood to undergo an anthropic shift. Such a shift would parallel our developing Anthropocene-consciousness, or our awareness of the effects human activity is having on environmental systems; and would diminish the importance of territory in the conception of the State, focusing instead on the existence of a coherent socio-political community.
https://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/inquiries/parliament-2015/uk-drone-policy-15-16/publications/
Drafts by Tom Sparks
We focus our study on measures taken during first six months of the pandemic (the “first wave”) in four European jurisdictions with significantly different constitutional settlements; namely France, Germany, Italy, and the United Kingdom. Following a contextual approach, the comparative analysis concentrates on four macro-issues: 1) the legal bases of adopted measures; 2) the horizontal allocation of power; 3) the vertical allocation of power; and 4) the role of the judiciary, especially in terms of fundamental rights protection. Across all four analytical categories, constitutional and institutional factors – such as the respective forms of government, vertical power conflicts, presence of pre-existing emergency schemes or legal doctrines, and the structure of the judicial systems – significantly impacted the (legal) path taken in the four jurisdictions under scrutiny and, importantly, reinforced pre-existing patterns of institutional shifts or social and political tensions. In particular, the role of two institutional features generally overlooked in the literature on the matter emerged: the concrete functioning of the vertical allocation of power and the reciprocal relationships between different jursdictions within judicial systems. By these means, this article aims to broaden and enrich the analytical toolkit of the literature concerning the relationship between states of emergency and specific forms of constitutional government and State.
This paper will argue that the widely used internal/external framework of classification of self-determination claims is not able to capture the complexities of the usages of the concept or of the different legitimacy-claims that it can represent. In focussing only on the outcomes sought it treats self-determination claims as a species: as of a single kind, but exhibiting perhaps different behaviours. It collapses the many types and sources of justification to which the concept variously refers, and thus inhibits the ability of the international legal system to distinguish between types of self-determination claims.
By contrast, this paper will present a four-part taxonomy of such claims as distinct species within a self-determination genus. It will be argued that although the four kinds of self-determination claims—political, colonial, remedial and secessionary—share a deep root, they nevertheless have different ideational and historical foundations. The forms therefore rely on different justification narratives, and represent invocations of different principles. Thus, for example, although both seek as outcome the displacement of sovereignty, the principles underlying a claim to colonial self-determination and a claim to remedial self-determination are sufficiently different that they cannot be meaningfully compared, let alone equivalentised.
That conclusion has, of course, significant implications for the international legal system. In rendering both the forms and the justification narratives of self-determination claims more readily distinguishable, it enables claims of different kinds to receive different legal treatment. There are indications that, in the coming years, the already significant role self-determination plays in international affairs may increase, including in some of the most unstable and contested regions of the world. A renewed focus on the idea of self-determination and of the claims it can represent is therefore timely.
Conference Presentations by Tom Sparks
In order for an international Court to grant interim protection (provisional measures), it should first satisfy that the party seeking protection has at least a plausible claim to the rights in question. So says, at least, the doctrine of plausibility, a relatively modern development in the criteria for the granting of provisional measures, but nonetheless one that now appears to be well-entrenched. But what standard does plausibility denote? This paper will trace the introduction and development of plausibility as a key criterion in provisional measures cases, and will discuss its various interpretations.
Although plausibility was first introduced as a low standard intended only to exclude weak or speculative requests for interim protection, it evolved to require a meaningful—albeit provisional—analysis of the applicant party’s claim. Recent developments, however, have seen a retreat from the higher standard, and in some recent cases the plausibility assessment could better be characterised as a possibility assessment.
This paper will consider the rationale of plausibility, and its changing use over time. In particular, it will ask whether plausibility is bifurcating, creating a situation in which one—strict—version of the plausibility assessment is applied where most categories of States’ rights are concerned (plausibility as a reasonable prospect of success), and another—lower—standard is applied to situations where individual and group rights are at risk (plausibility as human vulnerability). The paper will focus on the case-law of the ICJ, where plausibility has been extensively discussed in orders and separate/dissenting opinions, and where some of the most exciting recent developments have taken place.
This paper will argue that the widely used internal/external framework of classification of self-determination claims is not able to capture the complexities of the usages of the concept or of the different legitimacy-claims that it can represent. In focussing only on the outcomes sought it treats self-determination claims as a species: as of a single kind, but exhibiting perhaps different behaviours. It collapses the many types and sources of justification to which the concept variously refers, and thus inhibits the ability of the international legal system to distinguish between types of self-determination claims.
By contrast, this paper will present a four-part taxonomy of such claims as distinct species within a self-determination genus. It will be argued that although the four kinds of self-determination claims—political, colonial, remedial and secessionary—share a deep root, they nevertheless have different ideational and historical foundations. The forms therefore rely on different justification narratives, and represent invocations of different principles. Thus, for example, although both seek as outcome the displacement of sovereignty, the principles underlying a claim to colonial self-determination and a claim to remedial self-determination are sufficiently different that they cannot be meaningfully compared, let alone equivalentised.
That conclusion has, of course, significant implications for the international legal system. In rendering both the forms and the justification narratives of self-determination claims more readily distinguishable, it enables claims of different kinds to receive different legal treatment. There are indications that, in the coming years, the already significant role self-determination plays in international affairs may increase, including in some of the most unstable and contested regions of the world. A renewed focus on the idea of self-determination and of the claims it can represent is therefore timely.
This paper will examine the potential that a focus on this recursive social creation has to advance our understanding of the international legal system. It will take as its example the concept of the State—at one and the same time perhaps the most ubiquitous and the most enigmatic of international law’s structural elements—and will examine the interplay between the social, the legal and the linguistic in defining and constituting States and statehood.
This paper will argue that States, although they have a great variety of manifestations and effects with the power vastly to affect each of our daily lives, are social institutions created and existing only (but not merely) through what Searle terms declarations. Seen in this light “State” is a non-ostensive reference. In fact, as this paper will argue, although States are often treated as unitary, the term “State” acts like Wittgenstein’s beetle in a box: viewed from different perspectives, different meanings of the term emerge. The internal and external viewpoints, in particular, offer two coextensive but non-equivalent views of the idea “State”, which I term the State(Polity) and the State(Person). Disentangling these nested ideas permits a more coherent analysis of State creation as a two-stage process effectuated through declaratory action and exhibiting what Giddens terms recursive social activity, governed by language rules.
The paper will thus explore the scope for a semiotic account of the State and its creation, and will argue that such an approach provides an alternative to the utopian/apologist tension identified in conventional politico-legal accounts.
The Court chose to construe international law as a system of negative obligations, failing to consider positive rights held by States, non-State actors or individuals. In so doing it cast State ownership of territory as relational rather than absolute, relevant only to a State’s interactions with other States. Concurrently, however, it refused to consider whether individuals or peoples were the owners of the territory in which they lived. It failed to address whether nations and peoples could have a right to secede territorially, instead construing secession as an act not prohibited nor enabled by international law.
The Court’s Opinion was recently “tested” in the Crimean conflict, and this paper will argue that it has failed to promote international stability. Rather, the Advisory Opinion has cast ownership of territory into doubt. No longer can it be said that States own territory, merely that they have a right to exclude other States therefrom. Nor, though, does ownership of a territory devolve to its inhabitants, and the Court established a legal regime which inhibits self-determination. In so doing it removed the ownership of territory from the preserve of law and relegated it to power politics, and may have made future Crimea-style conflicts more likely.
Talks by Tom Sparks
- Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua)
- Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica)
- Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua)
- Land Boundary in the Northern Part of the Isla Portillos (Costa Rica v Nicaragua)
In the autumn of 2017 questions of self-determination will again come to the fore. The long-anticipated and intensely controversial independence referendum in Catalonia is scheduled for the 1st October, while a vote on the independence of Iraqi Kurdistan that could have significant consequences for the stability of the region is expected to take place on the 25th September. These events coincide with another opportunity for the ICJ to pronounce on self-determination, in the form of the advisory proceedings on the legality of the United Kingdom’s separation of the Chagos archipelago from its colonial possession of Mauritius prior to the latter’s independence.
This paper will discuss the forthcoming referenda in Catalonia and Kurdistan, and the situation of the Chagos Islands within a framework of a four-part typology of self-determination. It will place these events in the context of the history of self-determination claims, and will consider the legality of any potential secessions as well as the possible outcomes of the advisory proceedings. It will finish by considering the potential of these events to develop international law.
Newly independent States always face a future filled with imponderables, but the likely scope of their international law rights and obligations should not be among them. This paper will assess the rules on treaty succession applicable to bilateral, multipartite, membership and human rights agreements, and will highlight the gaps and uncertainties in the current law. In particular, it will discuss the crucial distinction between those multipartite treaties characterised as “multilateral”, and those characterised as “plurilateral”, and will offer a working definition of those terms. Finally, it will examine the major European treaties and set out the likely legal position of an independent Scotland under the TEU and TFEU, the EEA Agreement and the ECHR according to the international law of succession. In conclusion, the paper will argue that the timing of any Scottish secession would have a crucial bearing on the extent of the rights and obligations it can expect to enjoy and be subject to under the European treaties.
Published papers by Tom Sparks
Open access: https://www.doi.org/10.5040/9781509945092
Forthcoming in: Law and Practice of International Courts and Tribunals (exp. 2023).
This article will dispute that claim, and will argue that the principle of consent underpinning Monetary Gold is an empty formalism. Through a comparison of the Court’s approach in its contentious and advisory jurisdictions, it will ask to what States consent and for what purpose they do so, when they “consent to jurisdiction”, and no satisfactory answer will be found. It will conclude that the focus on consent in international adjudication is discretionary.
This is an open access article distributed under the terms of the cc by 4.0 license.
This paper discusses the potential of a human rights framework to contribute to the growth and development of global animal law. Parts one and two of the essay take as their example the jurisprudence of the European Court of Human Rights, and examine the major trends in the Court’s judgments and admissibility decisions that directly or indirectly concern the rights or welfare of animals. It is concluded that the Court is not indifferent to the welfare of animals, but that animal welfare is instrumentalised: it is understood not as a good in itself, but is instead valued for its implications for human welfare and rights. Part three of the essay then considers the obstacles that the anthropocentrism of the human rights idea and the instrumentalisation of animal concerns present to the use of human rights frameworks to further the development of global animal law, as well as the opportunities that exist in the meeting of these paradigms. It concludes that although the telos of human rights law is different from that of animal law, nevertheless there exist many overlapping concerns within which mutually beneficial interactions are possible.
This chapter evaluates the dominant theory of statehood, and argues that the paradigm is unable to meet this new reality. In a time of rising seas and sinking islands its limited conception of territory as an immutable, fixed point of reference will become increasingly damaging to the coherence of the idea of the State, and to the rights of the individuals most adversely affected. Instead the chapter argues that it is necessary for our understanding of statehood to undergo an anthropic shift. Such a shift would parallel our developing Anthropocene-consciousness, or our awareness of the effects human activity is having on environmental systems; and would diminish the importance of territory in the conception of the State, focusing instead on the existence of a coherent socio-political community.
https://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/inquiries/parliament-2015/uk-drone-policy-15-16/publications/
We focus our study on measures taken during first six months of the pandemic (the “first wave”) in four European jurisdictions with significantly different constitutional settlements; namely France, Germany, Italy, and the United Kingdom. Following a contextual approach, the comparative analysis concentrates on four macro-issues: 1) the legal bases of adopted measures; 2) the horizontal allocation of power; 3) the vertical allocation of power; and 4) the role of the judiciary, especially in terms of fundamental rights protection. Across all four analytical categories, constitutional and institutional factors – such as the respective forms of government, vertical power conflicts, presence of pre-existing emergency schemes or legal doctrines, and the structure of the judicial systems – significantly impacted the (legal) path taken in the four jurisdictions under scrutiny and, importantly, reinforced pre-existing patterns of institutional shifts or social and political tensions. In particular, the role of two institutional features generally overlooked in the literature on the matter emerged: the concrete functioning of the vertical allocation of power and the reciprocal relationships between different jursdictions within judicial systems. By these means, this article aims to broaden and enrich the analytical toolkit of the literature concerning the relationship between states of emergency and specific forms of constitutional government and State.
This paper will argue that the widely used internal/external framework of classification of self-determination claims is not able to capture the complexities of the usages of the concept or of the different legitimacy-claims that it can represent. In focussing only on the outcomes sought it treats self-determination claims as a species: as of a single kind, but exhibiting perhaps different behaviours. It collapses the many types and sources of justification to which the concept variously refers, and thus inhibits the ability of the international legal system to distinguish between types of self-determination claims.
By contrast, this paper will present a four-part taxonomy of such claims as distinct species within a self-determination genus. It will be argued that although the four kinds of self-determination claims—political, colonial, remedial and secessionary—share a deep root, they nevertheless have different ideational and historical foundations. The forms therefore rely on different justification narratives, and represent invocations of different principles. Thus, for example, although both seek as outcome the displacement of sovereignty, the principles underlying a claim to colonial self-determination and a claim to remedial self-determination are sufficiently different that they cannot be meaningfully compared, let alone equivalentised.
That conclusion has, of course, significant implications for the international legal system. In rendering both the forms and the justification narratives of self-determination claims more readily distinguishable, it enables claims of different kinds to receive different legal treatment. There are indications that, in the coming years, the already significant role self-determination plays in international affairs may increase, including in some of the most unstable and contested regions of the world. A renewed focus on the idea of self-determination and of the claims it can represent is therefore timely.
In order for an international Court to grant interim protection (provisional measures), it should first satisfy that the party seeking protection has at least a plausible claim to the rights in question. So says, at least, the doctrine of plausibility, a relatively modern development in the criteria for the granting of provisional measures, but nonetheless one that now appears to be well-entrenched. But what standard does plausibility denote? This paper will trace the introduction and development of plausibility as a key criterion in provisional measures cases, and will discuss its various interpretations.
Although plausibility was first introduced as a low standard intended only to exclude weak or speculative requests for interim protection, it evolved to require a meaningful—albeit provisional—analysis of the applicant party’s claim. Recent developments, however, have seen a retreat from the higher standard, and in some recent cases the plausibility assessment could better be characterised as a possibility assessment.
This paper will consider the rationale of plausibility, and its changing use over time. In particular, it will ask whether plausibility is bifurcating, creating a situation in which one—strict—version of the plausibility assessment is applied where most categories of States’ rights are concerned (plausibility as a reasonable prospect of success), and another—lower—standard is applied to situations where individual and group rights are at risk (plausibility as human vulnerability). The paper will focus on the case-law of the ICJ, where plausibility has been extensively discussed in orders and separate/dissenting opinions, and where some of the most exciting recent developments have taken place.
This paper will argue that the widely used internal/external framework of classification of self-determination claims is not able to capture the complexities of the usages of the concept or of the different legitimacy-claims that it can represent. In focussing only on the outcomes sought it treats self-determination claims as a species: as of a single kind, but exhibiting perhaps different behaviours. It collapses the many types and sources of justification to which the concept variously refers, and thus inhibits the ability of the international legal system to distinguish between types of self-determination claims.
By contrast, this paper will present a four-part taxonomy of such claims as distinct species within a self-determination genus. It will be argued that although the four kinds of self-determination claims—political, colonial, remedial and secessionary—share a deep root, they nevertheless have different ideational and historical foundations. The forms therefore rely on different justification narratives, and represent invocations of different principles. Thus, for example, although both seek as outcome the displacement of sovereignty, the principles underlying a claim to colonial self-determination and a claim to remedial self-determination are sufficiently different that they cannot be meaningfully compared, let alone equivalentised.
That conclusion has, of course, significant implications for the international legal system. In rendering both the forms and the justification narratives of self-determination claims more readily distinguishable, it enables claims of different kinds to receive different legal treatment. There are indications that, in the coming years, the already significant role self-determination plays in international affairs may increase, including in some of the most unstable and contested regions of the world. A renewed focus on the idea of self-determination and of the claims it can represent is therefore timely.
This paper will examine the potential that a focus on this recursive social creation has to advance our understanding of the international legal system. It will take as its example the concept of the State—at one and the same time perhaps the most ubiquitous and the most enigmatic of international law’s structural elements—and will examine the interplay between the social, the legal and the linguistic in defining and constituting States and statehood.
This paper will argue that States, although they have a great variety of manifestations and effects with the power vastly to affect each of our daily lives, are social institutions created and existing only (but not merely) through what Searle terms declarations. Seen in this light “State” is a non-ostensive reference. In fact, as this paper will argue, although States are often treated as unitary, the term “State” acts like Wittgenstein’s beetle in a box: viewed from different perspectives, different meanings of the term emerge. The internal and external viewpoints, in particular, offer two coextensive but non-equivalent views of the idea “State”, which I term the State(Polity) and the State(Person). Disentangling these nested ideas permits a more coherent analysis of State creation as a two-stage process effectuated through declaratory action and exhibiting what Giddens terms recursive social activity, governed by language rules.
The paper will thus explore the scope for a semiotic account of the State and its creation, and will argue that such an approach provides an alternative to the utopian/apologist tension identified in conventional politico-legal accounts.
The Court chose to construe international law as a system of negative obligations, failing to consider positive rights held by States, non-State actors or individuals. In so doing it cast State ownership of territory as relational rather than absolute, relevant only to a State’s interactions with other States. Concurrently, however, it refused to consider whether individuals or peoples were the owners of the territory in which they lived. It failed to address whether nations and peoples could have a right to secede territorially, instead construing secession as an act not prohibited nor enabled by international law.
The Court’s Opinion was recently “tested” in the Crimean conflict, and this paper will argue that it has failed to promote international stability. Rather, the Advisory Opinion has cast ownership of territory into doubt. No longer can it be said that States own territory, merely that they have a right to exclude other States therefrom. Nor, though, does ownership of a territory devolve to its inhabitants, and the Court established a legal regime which inhibits self-determination. In so doing it removed the ownership of territory from the preserve of law and relegated it to power politics, and may have made future Crimea-style conflicts more likely.
- Certain Activities Carried out by Nicaragua in the Border Area (Costa Rica v Nicaragua)
- Construction of a Road in Costa Rica along the San Juan River (Nicaragua v Costa Rica)
- Maritime Delimitation in the Caribbean Sea and the Pacific Ocean (Costa Rica v Nicaragua)
- Land Boundary in the Northern Part of the Isla Portillos (Costa Rica v Nicaragua)
In the autumn of 2017 questions of self-determination will again come to the fore. The long-anticipated and intensely controversial independence referendum in Catalonia is scheduled for the 1st October, while a vote on the independence of Iraqi Kurdistan that could have significant consequences for the stability of the region is expected to take place on the 25th September. These events coincide with another opportunity for the ICJ to pronounce on self-determination, in the form of the advisory proceedings on the legality of the United Kingdom’s separation of the Chagos archipelago from its colonial possession of Mauritius prior to the latter’s independence.
This paper will discuss the forthcoming referenda in Catalonia and Kurdistan, and the situation of the Chagos Islands within a framework of a four-part typology of self-determination. It will place these events in the context of the history of self-determination claims, and will consider the legality of any potential secessions as well as the possible outcomes of the advisory proceedings. It will finish by considering the potential of these events to develop international law.
Newly independent States always face a future filled with imponderables, but the likely scope of their international law rights and obligations should not be among them. This paper will assess the rules on treaty succession applicable to bilateral, multipartite, membership and human rights agreements, and will highlight the gaps and uncertainties in the current law. In particular, it will discuss the crucial distinction between those multipartite treaties characterised as “multilateral”, and those characterised as “plurilateral”, and will offer a working definition of those terms. Finally, it will examine the major European treaties and set out the likely legal position of an independent Scotland under the TEU and TFEU, the EEA Agreement and the ECHR according to the international law of succession. In conclusion, the paper will argue that the timing of any Scottish secession would have a crucial bearing on the extent of the rights and obligations it can expect to enjoy and be subject to under the European treaties.