International Journal on Minority and Group Rights 17 (2010) 197–209 brill.

nl/ijgr

Book Reviews

J. Summers, Peoples and International Law – How Nationalism and Self-

Determination Shape a Contemporary Law of Nations, Martinus Nijhoff Publishers,
Leiden, 2007. ISBN: 978-9004154-91-9, xliv and 464 pages, price: EUR 137,
USD 204.

The concept of ‘self-determination’ has notoriously proved to be an extremely

complex one. As was summarized by Rodolfo Stavenhagen some years ago, self-
determination is simultaneously “an idée-force of powerful magnitude, a philo-
sophical instance, a moral value, a social movement, a potent ideology, that may
also be expressed, in one of its many guises, as a legal right in international law”.1
In its legal form, it has been acknowledged as “one of the essential principles of
contemporary international law”.2 Nonetheless, as known, its application in prac-
tice has often turned out to be ambiguous; arguably, the lack of a universally
agreed definition of its basic unit, i.e. the ‘people’, has fuelled this ambiguity.
One of the starting points of Summers’ work is precisely the concept of ‘peo-
ple’. In the author’s view, ‘people’ should be understood as a political idea rather
than as a sociological entity (p. xxxvii). According to Summers, indeed, the lack
of an agreed definition of this term “provides the room for peoples to be used as
political ideas” (p. xlii). In fact, “[i]f it is claimed that a group is a people there is
no agreed standard against which that claim can be measured. It is purely a matter
of perception” (ibid.). In this context, nationalistic arguments are called into
play.
Actually, Summers’ work aims at providing an account of the right of self-
determination in international law on the assumption that this right is the prod-
uct of the interaction between the doctrines of nationalism and international law
(p. xxxiv). Accordingly, the method followed by the author for analysing it is a
hybrid one, making use of both nationalist and legal perspectives. The linkage
between the two is found by Summers in the ‘State’ (p. 22) and in the political
idea of ‘people’.

1)
R. Stavenhagen, ‘Self-determination: Right or Demon?’, IV Law and Society Trust (1993), as
quoted in H.J. Steiner and P. Alston, International Human Rights in Context – Law, Politics, Morals
(Oxford University Press, Oxford, 2000) p. 1248.
2)
Case Concerning East Timor (Portugal v. Australia), judgement of 30 June 1995, para. 29, <www
.icj-cij.org/docket/files/84/6949.pdf>, last visited on 22 March 2008.

© Koninklijke Brill NV, Leiden, 2010 DOI 10.1163/157181110X12595859744367

198 Book Reviews / International Journal on Minority and Group Rights 17 (2010) 197–209

On the one hand, nationalism is presented as a political doctrine holding that

the ‘nation’ or the ‘people’ is the basis for every legitimate political authority. It
follows that “States are only legitimate to the extent that they represent nations or
peoples” (p. 21). What should be understood in practice by the terms ‘people’ or
‘nation’ is, however, far from unequivocal and is rather left to political and subjec-
tive interpretations (pp. 11 and 13). As the author stresses, in fact, “[t]he nation-
alism argument is one in which nations and peoples are used to legitimise certain
political goals” (p. 19). Consequently, both concepts are employed as purely
political ideas and, in this framework, the features of a group will be shaped and
interpreted so as to support certain political positions.
On the other hand, the author notes that international law has States as its
main character. If peoples, according to nationalism, are central to the legitimacy
of States, it is also true that it is States who decide in practice which entity can be
considered a ‘people’ (p. 22). As the author highlights, “access to international
law depends on States and they are unlikely to extend sponsorship if it is against
their interests to do so” (p. 23). Once again, the understanding of what consti-
tutes a ‘people’ thus becomes an inherently political matter.
In concrete terms, Summers argues that international law and nationalism
interact through the relationship between ‘national ties’ and ‘legal principles’
(pp. 45–82). As the author points out, the former is a concept crucial to national-
ism referring to those ties, such as language, religion, race, politics, territory and
history, which are commonly used in order to identify a nation, in the political
and ethnic interpretations of the doctrine. The latter, on the contrary, is a concept
essential to international law; in fact, the way international law is shaped depends
on how these principles – such as, for example, the principle of territorial integ-
rity, that of state sovereignty, inviolability of frontiers or self-determination –
interrelate and are balanced (p. 46).
In practice, however, as Summers emphasizes, national ties can well correspond
to legal principles; just think of the affinity between state sovereignty and political
ties (i.e those related, for instance, to a common political life, national institutions
and enjoyment of certain rights and freedoms), self-determination and subjective
ties (i.e self-identification) or territorial integrity and territory-related or
geographical ties (i.e. the fact of living within the same territorial unit). Therefore,
the balance of legal principles underlying the law of self-determination –
self-determination v. territorial integrity, self-determination v. state sovereignty,
self-determination v. inviolability of frontiers, etc. – can also been read as the
result of the different weight attached to national ties when ‘interpreting’ a certain
social reality (p. 48). In this manner, according to the author, nationalism is in a
position to influence the drafting and interpretation of international instruments,
the decisions of judicial bodies and the content of international legal obligations.
Summers’ argument is presented throughout five chapters. After having out-
lined the premise of his work in the first chapter, and briefly described the
 Book Reviews / International Journal on Minority and Group Rights 17 (2010) 197–209 199

historical background to the development of the right of peoples to self-

determination in the second chapter, the author then turns to illustrate more in
depth the dynamics of nationalism and international law’s interaction in some
specific contexts, thus clarifying his theory. However, the use of the terms ‘nation-
alism’, ‘national self-determination’ and ‘self-determination’ sometimes in an
interchangeable fashion, other times as implying clearly different concepts (com-
pare, for instance, pages 1, 28, 46 and 82), often arouses some perplexity in the
reader.
The third chapter looks at the role of international instruments. In this con-
text, the interaction between nationalism and international law poses the specific
problem of “how to proclaim the principle [of self-determination] as a universal
right, essential for its nationalist legitimacy, while restricting it to defined catego-
ries, important for its legal application” (p. 141). As the author illustrates, the
response to this question has consisted in balancing self-determination with other
principles that have the practical effect of limiting its application.
One example of balances struck in international instruments provided by the
author, is represented by principle 6 of the Colonial Independence Declaration3
stating that “[a]ny attempt at the partial or total disruption of the national unity
and territorial integrity of a country is incompatible with the purposes and the
principles of the Charter of the United Nations”. This Declaration evidently bal-
ances self-determination with territorial integrity. In this connection, the under-
standing of the term ‘country’, which lends itself to various nationalist – and
political – interpretations, becomes crucial. In fact, this term can be read as refer-
ring to a ‘colony’, a ‘state’ or a ‘nation’. As the author remarks, “states interpreted
principle 6 as it suited them best” (p. 197). Thus, Morocco, for instance, backed
all three interpretations depending on the circumstances of the case under discus-
sion: with regard to Palestine, it supported the view that principle 6 protected the
integrity of a ‘colony’; as concerns Congo, it upheld the interpretation of a ‘coun-
try’ as implying the integrity of a ‘state’; finally, as regards Mauritania, it argued
that principle 6 pursued the integrity of a ‘nation’. In Summers’ words, then
“paragraph 6 and its open concept of ‘country’ did not so much establish legal
clarity, as simply represent a vehicle for nationalist claims” (p. 197).
Equally interesting are the considerations developed with regard to the Friendly
Relations Declaration,4 notably regarding principle 5, paragraph 7 of this
Declaration. The Declaration follows the common approach to the issue. It stipu-
lates that self-determination is the right of ‘all peoples’, thus attaching it a universal

3)
Declaration on the Granting of Independence to Colonial Countries and Peoples, G.A. Res.
1514 (XV), 14 December 1960.
4)
Declaration on Principles of International Law concerning Friendly Relations and Cooperation
among States in Accordance with the Charter of the United Nations, G.A. Res. 2625 (XXV),
24 October 1970.
200 Book Reviews / International Journal on Minority and Group Rights 17 (2010) 197–209

value; at the same time, it balances it with other principles, in particular the ter-
ritorial integrity of States. However, in an attempt not to look as arbitrarily deny-
ing the right to self-determination to some peoples, the Declaration equates
self-determination with representative government in paragraph 7, thus seeking
to limit it “by satisfaction rather than arbitrary restriction” (p. 218). The connec-
tion between the safeguard of territorial integrity and the possession of a represen-
tative government was interpreted by Western States in light of liberal nationalistic
views. African States, in turn, read this provision essentially as an anti-apartheid
norm supporting the fight against white minority rule in Africa (p. 221).
Possibly more illustrating of the subtle relationship between nationalism and
international law is chapter four dealing with decisions by international and
national courts. In this regard, Summers underscores how, faced with the delicate
task of striking a balance between the various legal principles relevant to the law
of self-determination with a view to applying it to concrete situations, courts have
often resorted to nationalist arguments to support their balances of principles. It
is worth recalling here once more that one of the author’s assumption is, in fact,
that legal principles may correspond to national ties and thus a certain balance of
principles can be read as a different weighting of national ties in the interpreta-
tion of a given social group. In this sense, the authors stresses how “[i]f a balance
swings towards self-determination, then a people will be identified to exercise
that right. If the balance swings away from self-determination, perhaps towards
territorial integrity or sovereignty, then the court may play down the significance
of the groups in question” (p. 259). In both cases, the characteristics of peoples –
and the importance attached to national ties – are employed and interpreted in
an extremely subjective manner in order to justify a particular legal position.
This approach is particularly evident in the Ǻland Islands case when comparing
the opinion expressed by the Commission of Jurists with that formulated by the
Commission of Rapporteurs (pp. 278–293). Whereas the former reached the con-
clusion that the Ǻland question should be brought before the League of Nations
Council by deconstructing ‘Finland’ as a historical political entity and building an
‘Ǻland’ idea – especially on the basis of the will expressed by this people in the
plebiscite of June 1919 (p. 284) – the latter interpreted the same facts in the oppo-
site way: they stressed Finnish statehood and downplayed any elements which
could suggest the existence of an ‘Ǻland’ identity and related aspirations. As the
author puts it, “the Commission of Rapporteurs build a counter-argument against
the use of self-determination to disrupt a state’s territorial integrity by focusing on
the right as one of historically constituted political units. Emphasis was placed on
stability and the historical development of political life. Conversely, the signifi-
cance of the will of people at any particular time was played down” (p. 293).
Precisely for reasons relating to stability, the Ǻland question was to be dealt within
the frame of minority protection; however, the door was left open by the
 Book Reviews / International Journal on Minority and Group Rights 17 (2010) 197–209 201

Rapporteurs to self-determination through secession in the event that the Aalanders

were faced with oppression from the Finnish government.
A similar approach was also followed by the Canadian Supreme Court in the
case Re. Secession of Quebec.5 In this regard, Summers emphasizes how the Court
was able to reduce the relevance of Quebec’s claim to be a people because it had
already carefully constructed an idea of Canada “as a political nation founded in
shared values and institutions”, namely “Canada was not a country founded along
narrow ethnic lines, but a people of peoples” (p. 296). In other terms, as in the
Ǻland case, emphasis was placed on the historical process of political develop-
ment of a certain territorially established entity to the detriment of the aspirations
of its segments.
After having outlined how the law of self-determination results from the inter-
action between nationalism and international law, the author concludes his anal-
ysis by focusing more closely on the law of self-determination itself in chapter
five. In this context, Summers describes how self-determination can either chal-
lenge or support existing legal obligations. At the same time, he wonders whether
it can be said to establish rules of its own (p. 319). The conclusion reached by the
author is that self-determination seems to provide arguments for the legitimacy
of legal rules rather than creating them (p. 398).
In conclusion, Summers’ argument is that the law of self-determination is
shaped by the conflicting pressures of nationalism and international law. This
entails that it rests on two different sources of legitimacy requiring often contrast-
ing things. The practical approach used to combine these different standards has
traditionally consisted in balancing and weighting national self-determination
with other principles. This has, however, resulted in an incoherent and ambigu-
ous application of the right where political and subjective interpretations play a
considerable role.
And yet, the arguments presented by the author do not always prove convinc-
ing. Despite the number of examples provided, one has rather the impression that
nationalism, in its various dimensions, can be more an argument invoked a pos-
teriori in order to justify and support certain balances of interests rather than a
doctrine able to influence a priori the law of self-determination.
Given that nationalism is central to the author’s theory, one would have
expected to find a more precise definition of it, other than the very general one
provided at the beginning of the book. The same holds true for the notion of
‘nation-State’ which would provide the link between international law and
nationalism; indeed, it can be wondered what is exactly the model of State, if any,
which the author has in mind. Actually, the reference to all kinds of national ties,

5)
Supreme Court of Canada, Re Secession of Quebec, [1998] 2 S.C.R. 217, 20 August 1998.
202 Book Reviews / International Journal on Minority and Group Rights 17 (2010) 197–209

relating to both ethnic and political nationalism, seems to indicate that no par-
ticular notion of nationalism is eventually embraced. If, as the author assumes,
the law of self-determination is to be shaped by the conflicting pressures of
nationalism and international law, a more specific analysis would have been wel-
comed. By contrast, the author seems to trace the ‘conflicting pressure’ exercised
by nationalism solely in the need for the universal application of the principle of
self-determination. After all, it then appears that the central point is the lack of a
univocal definition of ‘people’ and the correlative possibility being left for politi-
cal and subjective interpretations of this concept which may, of course, make use
of nationalist arguments.
Significantly, the debates surrounding the recently approved UN Declaration
on the Rights of Indigenous Peoples,6 with regard to both the definition of indig-
enous groups as ‘peoples’ and their entitlement to self-determination, testify how
sensitive the issue is. However, the final outcome of these debates, and more gen-
erally the recent developments of international law, seem to be more concerned
with and informed by multiculturalism and the need to protect cultural diversity
rather than by rigid nationalistic postulates.

Stefania Errico
PhD, International Law
University ‘Federico II’ of Naples, Italy

6)
UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples, UN Doc
A/61/L.67, 13 September 2007.