Collective self-determination has long been regarded as something of a sticking point for international law. Is it a “right” or a “principle”? Should it be understood as a clearly articulated legal entitlement that is capable of being enforced or as a political slogan that benefits from conceptual imprecision and malleability? What precisely is meant by the “self” that is supposed to be “determined” in “self-determination”? Or of the “people” to which international lawyers refer when speaking of the “self-determination of peoples”? Perhaps most famously, if self-determination may be asserted only by a cohesive and readily identifiable “people”, how can it also be the case that it is only through such assertion that a determinate “people” is deemed to come into being? Is there not a fatal circularity here, such that the concept of collective self-determination presupposes the existence of the very “people” its operationalisation is supposed to call forth?
In International Law as the Law of Collectives, John Morss confronts these and a host of other quandaries. Suggestive rather than programmatic, the book spirals around a broadly related set of anxieties rather than setting out its core claims directly and straightforwardly. Indeed, it does not lend itself to neat-and-tidy synopsis, shifting thematic and theoretical gears from chapter to chapter, in some cases abruptly and without appropriate transition. At root, though, Morss contends that international law has not grappled meaningfully with “collectives”, a vague term that he never truly defines but that he nevertheless employs with a view to casting doubt upon both state-centric and individual-oriented accounts of international legal personality. According to Morss, international law has traditionally prioritised the state form, an artifice that he, like so many others, traces reluctantly to the 1648 Peace of Westphalia. This conventional prioritisation finds forceful expression in what international lawyers like to call “sources doctrine”, articulated most famously, though not without controversy, in Article 38 of the Statute of the International Court of Justice (and, before it, the Statute of the Permanent Court of International Justice). However, as Morss notes, a variety of efforts have been made over the course of the past half-century to loosen allegiance to the state form by augmenting the status of the individual under international law. This shift is now widely viewed as having propelled the development of international human rights law and international criminal law – two fields that have led to the establishment of a large number of new courts, tribunals, and reporting mechanisms.
For Morss, neither the state-centric nor the individual-oriented approach to international law is truly satisfying. Both suffer from the same fundamental weakness – a deep-seated, quasi-ontological commitment to “individualism” that Morss regards as informing all facets of the discipline of international law. By adopting the state as their primary unit of analysis, international lawyers have historically thrown their weight behind an anthropomorphised and artificially unified construction – one that bears little if any resemblance to the complex, criss-crossing institutional assemblages that populate actual political life. More recent efforts to place natural persons at the forefront of international law have been no more successful, since they are grounded in liberal models of autonomy that are vulnerable to critique from a variety of directions, from Marxian class analysis to feminist relational theory. Indeed, as Morss points out, these two approaches are structurally linked on a number of levels. Not only does the state tend to be cast as the primary guarantor of individual rights, but received histories of international law are generally informed by a narrative of progress from “outdated” ideas about absolute sovereignty to “modern” norms of individual autonomy. What is more, ill-defined notions of “will” and “consent” underlie the way in which international lawyers tend to ascribe rights and duties to states and natural persons alike. “A plague on both your houses”, Morss declares, dedicated as he is to paving the way for a “third style” that will foster appreciation of the role of “collectives” in international law (pp. 7, 140).
Morss's attempt to position himself in opposition to international law's putative “individualism” is intriguing. From a specifically doctrinal standpoint, it has considerable implications for prevailing conceptions of self-determination, the standard models of which Morss finds to be rather restrictive. Although “[w]eak senses of self-determination in international law, which reduce to the honouring of individual rights to culture and association, evade the issues raised by the collective analysis”, Morss writes at one point, “strong senses of self-determination” are equally inadequate, since they “make presuppositions about the coherence and cohesiveness of territorial communities” (p. 114). Similarly, Morss concedes that international law already recognises a number of actors and groups with what might broadly be termed a “collective” dimension (women, minorities, and Indigenous peoples are among those that he mentions explicitly), but he argues that orthodox accounts of international law relegate such actors and groups to the margins, refusing to anchor them in an overarching theory of international law as a fundamentally “collective” enterprise. Suggestions of this sort are fascinating, but their value is limited by the fact that Morss never provides a cogent explanation of the “collectivist” project upon whose importance he so adamantly insists. Morss informs us that “collective” is his “code word for … attention to the pluralistic”, and that such attention is needed in order to cultivate a cosmopolitan vision of global justice, since the “collectivist paradigm in international law is intended to be a contribution to the cosmopolitanism project more broadly” (pp. 8, 135). Strangely enough, though, he elucidates neither the idea of a “collective” nor that of the cosmopolitan project it is meant to facilitate. Lofty pronouncements to the effect that international law “should be thought of as the study of mass movements” and that it is “about people in motion even if they are not going anyplace right now” do not help to clarify matters any further (p. 117).
Morss organises his core argument around a series of conversations with leading political theorists and international lawyers. Sweeping across an enormous terrain, Morss engages with, among other things, early modern political theory, Kantian and post-Kantian philosophy, Third World Approaches to International Law scholarship, recent writing on state complicity and responsibility, and “crossover” work at the nexus between international law and international relations. The work of Jeremy Waldron is called into action on a number of occasions, not least for its express disavowal of culturally rooted identity politics. And John Rawls's The Law of Peoples is regularly taken to task, particularly for what Morss, like others, regards as its heavy-handed reliance upon a contractarian model of international order in which autonomous nation-states are granted pride of place. The wide-ranging character of these and other discussions makes for a lively and erudite book, though one that is continually on the verge of losing sight of its central argumentative thread.
Ultimately, if International Law as the Law of Collectives is not genuinely successful in its attempt to articulate a new theory of “collectives”, it is not for that reason any the less engaging. Its central call to “take collectives seriously” – a call that Morss regards as “throw[ing] down a challenge to the theory of international law” – remains inchoate and nebulous (p. 140). Yet this failure is an informative and illuminating one. Morss's dissatisfaction with existing international legal theory, particularly as it relates to self-determination, easily one of the murkiest concepts of international law, is well placed and calls for further examination.
