Although new work on women’s contributions is on the horizon, international lawyers have written relatively little history of their discipline from a gender perspective, whether on legal subjects or actors in international law, or on gender relations as a way of signifying or structuring legal power. Histories of women and diplomacy, studies of gender and empire, and feminist intellectual history might therefore seem like obvious sources with which to engage.

Karen Knop takes up the question ‘[h]ow do we study doorways and the constitution?’ and offers an answer in a deliberately ‘explanatory and experimental vein’. Her contribution focuses on the curious introduction, by the Supreme Court of Canada, of ‘comity’ as a principle of interpretation for the Canadian Charter of Rights and Freedoms. Curious, because, as Knop writes, while the ‘constitutionalization of comity is familiar’, notably in the area of private international law, ‘the “comitization” of the Constitution is not’. Knop analyzes four leading decisions by the Supreme Court of Canada, each of which figured ‘something(s) called “comity”’ as ‘a way in which the existence of, dependence on and regard for the Other figure in the constitution’. Using these four cases, Knop is able to elaborate a history of ‘cosmopolitanism introduced into the Constitution by comity’, that both reaches further back and is richer – in including also private legal relations – than familiar accounts of the post-Second World War emergence of international human rights regimes in public international law.

Introduction

Statehood has long been the central organising idea in the international system. Although there is no generally accepted legal definition of statehood, the best-known formulation is found in the 1933 Montevideo Convention on Rights and Duties of States: defined territory, permanent population, government and capacity to enter into relations with other states. Paradigmatically, territory, people and government coincide in the state to produce international law’s map of the world as a jigsaw puzzle of solid colour pieces fitting neatly together.

Although the state as territory–people–government is international law’s main device for representing the world, the intersection of this definition with other doctrines of international law complicates the picture. As this chapter shows, the result is a diversity of representational mandates: some states are made to carry one meaning, others another. From different conceptions of the state, the chapter moves next to different models of its centrality. The story it tells about international law scholarship proceeds from the state’s twofold significance as the international system’s main organising idea. First, on the analogy between states in international society and individuals in a society, states are like individuals. The accent on the state–individual analogy is basic to traditional international law, in which states are central in the sense that they are the only full legal subjects. But are states like individuals in a state of nature, as Thomas Hobbes famously thought, or are they like individuals in a state? Insofar as they tend toward the latter – or the domestic state even serves as the comparator for the international system – then ideas of the state fundamentally organise international law in a second sense. The international system is held up to the domestic state, whether in a concrete analogy or in some more abstract search for appropriate principles or a style of approach. And on this international system–domestic state comparison, the actors in the international system need not be limited to states.

For over a century, international lawyers have debated the right of a group to choose its sovereignty. The emergence of new states and self-determination movements after the Cold War has only intensified the disagreement over the status of a right to secede. I have sought in this book to shift the discussion from the articulation of the norm to the inevitable activity of interpretation. Whereas self-determination is routinely analysed as recognizing diversity through statehood, self-government and other forms of political organization, I have argued that the practice of its interpretation also involves and illuminates a more general problem of diversity raised by the exclusion of many of the groups that self-determination most affects from the making and the perspective of the norm.

Distinguishing different types of exclusion and the relationships between them has revealed the deep structures, biases and stakes in the scholarship and decisions on self-determination. This framework of analysis has also revealed – perhaps more surprisingly – that the leading cases have grappled with these embedded inequalities. Through new readings of the cases, challenges by Islamic communities, colonies, ethnic nations, indigenous peoples, women and others to the culture or gender biases of international law have emerged as integral to the interpretation of self-determination historically, as have attempts by judges and other institutional interpreters to meet these challenges.

The draft declaration on the rights of indigenous peoples completed by the UN Working Group on Indigenous Populations in 1993 has been described by Robert Williams, Jr. as ‘one of the most important encounters occurring on the frontiers of international human rights law’. For Williams and other indigenous commentators, its importance is procedural as well as substantive. The draft is portrayed as responding significantly to the stories told by indigenous peoples about their place in the world and to their arguments about the human rights that must be recognized for them to preserve this place. But Mary Ellen Turpel describes the draft as significant, first and foremost, for the remarkable ‘power-sharing of the pen’ between the human rights experts who comprised the Working Group and the indigenous peoples and state representatives who took part in its work.

The participation of indigenous peoples themselves in the articulation of their rights in international law, including their right of self-determination, differentiates this interpretive forum from the international courts and tribunals in the previous chapter. The UN Working Group integrated indigenous participation into both its credo and its methods. The number of participants in the 1993 session of the Working Group, including observer governments, UN organizations, indigenous nations, organizations and communities, non-governmental organizations, individual experts and scholars, totalled over six hundred. In addition to the nine indigenous NGOs having consultative status with the UN Economic and Social Council, more than one hundred indigenous nations and organizations were represented at the session.

‘Un droit imprécis, voire marqué par la contradiction, est aussi un droit éminemment évolutif,’ observes Michel Virally. (‘A law that is imprecise, or even marked by contradiction, is also a law that is eminently evolutive.’) He connects the form that an international law norm takes to its ability to meet the needs of an international society in transition from a club of European states to a more equal and inclusive community. Virally's observation draws attention to an important but neglected point of contention in the debate among international lawyers over a right to secede – namely, how imprecise the law of self-determination is – and to the implications for diversity. This chapter pursues one particular aspect of this disagreement: the characterization of self-determination as a rule of international law, a principle of international law, or both. To frame the discussion, the chapter uses Antonio Cassese's treatment of self-determination as both principle and rule in Self-Determination of Peoples: A Legal Reappraisal and James Crawford's response in his review of the book.

We need not accept Virally's mapping of the rule/principle distinction onto the dichotomies of conservative/progressive, disempowering/empowering, homogeneous/heterogeneous. Indeed, we shall find that approaching self-determination as a principle is not necessarily always better suited to advancing substantive justice, procedural fairness and a thrivingly diverse international community. The proposition, however, provokes a set of questions that begin to reveal the structures at work in competing definitions of self-determination and the stakes in the choice of structure.