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Welcome back to New Books Network. I'm Ladisa Lillich, doctoral candidate in modern European history at Vanderbilt University. In today's episode, I'm delighted to host Dr. Miriam Buck McKenna, the associate professor at the Department of Social Sciences and Business at Law School University in Denmark.
Dr. McKenna's research takes an interdisciplinary and socio-legal approach to law with a particular focus on international law, legal history, law and gender, law and political economy, and post-colonial legal theory. We will be discussing her captivating first monograph, Reckoning with Empire, Self-Determination in International Law, Hot Off, Brielle's Press. The book traces the ways in which various actors have sought to reinvent self-determination in different juridical and economic iterations to create the conditions for global transformation and to challenge exclusionary practices of Eurocentric world orders.
Dr. McKenna, thank you for joining New Books Network and for taking the time to talk to me about your work. Thank you so much for having me and thank you for that generous introduction. As is customary on the channel, I will start us off by asking how your previous intellectual and research trajectories had led you to write Reckoning with Empire.
Yeah, well, so this started as my dissertation, which I wrote at the University of Copenhagen, the law faculty several years ago, and it was sort of, it emerged from my interest in this discussion to have a gun at that point about the manners and ways in which international legal history had been written. And this sort of growing critique of how international lawyers use history and write history, and that of course being this tendency to have a quite positivistic approach and to follow many of the same sort of focal points on hierarchies of sources that follow the international legal positive approach. So the way that history is sort of used within this framework to sort of underpin certain legal and normative ideas has been increasingly criticized. And I was really interested in discussions and I thought that self-determination really epitomized this problem because I had come to this area during my LLM studies, which I wrote about the international court of justice advisory opinion on Kosovo.
And I was just really interested in the incredibly varied approaches that states were taking in their submissions on self-determination. And I just didn't think that quite followed the history that I had been reading about self-determination, which is very singular and very theological. It's incredibly sort of consistent throughout all texts on self-determination. And I thought that was somehow just too narrow and too un-uanced.
So what I was really interested in doing was revisiting this history through a different lens and a less positivistic lens. And I was supervised by a sociologist, a legal sociologist who was very worked with and was very informed by the work of Baujur. So I decided to take this idea of self-determination and sort of open up the conception of what self-determination could mean in such a law to be sort of a far more sort of socio-legal idea, one in which there have been various contestations and frictions over defining its meaning and using it in different, to pursue different ends. So I was really interested in playing with this idea of rewriting international legal history in a different way in a much more socio-legal way and using drawing on a different variety of source material and really trying to step outside of that classical approach to writing international legal history.
So that sort of worked out. And to be honest, I finished in 2015 and I went on maternity leave and I put it on the shelf for a couple of years. I wasn't really that interested in pursuing the book. And through the years, several people who have been on my committee and have read the text of what interested in why I hadn't published it.
And so towards the end of 2020, I decided, okay, this is the year I'm going to put out in the world. So yeah, in that sort of period, a lot of things had really changed, I think. And there's been this really wonderful and fruitful discussion that's gone on, particularly in international relations and political theory. And of course, I'm referring to Anne Geshit's wonderful book, which looks at the use of self-determination, particularly by Pan-African legal activists.
And I just wanted to sort of, I guess this is kind of dovetailing with a lot of this work, but much more focused on this legal iteration. And so within legal institutions and settings, how has this idea, which is very amorphous and ambiguous, being used by different actors? So the idea is to really get away from that linear, teleological progressive narrative, which has tended to talk about self-determination as this sort of gradual unfolding of a liberal idea, which tends to start during the Enlightenment period and then has sort of been taken up various junctures. And then of course, becomes this right during the decolonization period.
And that's just really not what I was seeing when I was looking at a lot of the debates in a different legal forum, and also in the writings of various academics. So I wanted to revisit that narrative and open up to showing how self-determination is an incredibly interesting sort of a bit of a parentorous box in the international system. And that's also something that I guess international lawyers that sat in, sort of awkwardly with international lawyers over the years, which has, you know, they tend to want to give it some sort of concrete definition. And so this is where the history has come in, is that they've tended to struggle with defining it in a positive sense.
So they tend to turn to, you know, in a different points where there's a sort of maybe crystallizing to certain legal documents or frameworks. But I think that misses a lot of how politicized this idea has been and how radical an idea in the international legal order, this idea actually is. So, yeah, I don't think it's, I don't think it'd be enough credit for being this, you know, really, really interesting kind of legal phenomenon in international law, because it's sort of seen, I think, for a lot of people as a kind of, a lot of lawyers at least as kind of annoying, sort of undefinable principle, which just kind of causes a lot of problems. Yeah.
You cannot see me, of course, but I was nodding vigorously throughout your initial response and this perfectly anticipates my following question. Would you elaborate on your approach to law and history? Recently there has emerged a debate about the benefits and pitfalls of the ways in which historians use the law and international lawyers use history to narrate these transformations of global legal frameworks. How exactly does Reckoning Wood Empire respond to these dilemmas?
Yeah, I mean, it's really, it's trying to plug into some big debates that have been going on, particularly amongst critical and subtle lawyers for several years now. I think I, I adopt that same slightly wary stance on, on writing history as a, as a lawyer, because I'm not a trained historian. So I'm very aware that I'm using history in a way that is very particular to my discipline, but also doing so in a way that tries to step away from the ways in which international lawyers have tended to write history, which is again that like extremely positive is focused, you know, so fitting, fitting an idea within a predefined narrative in a way or predefined idea, instead of looking for the historical sources that kind of back that up, which is obviously really problematic for historians. And this is also why it's so incredible that so many trained historians and, and, you know, different kinds of people from different scholarly backgrounds have come to the right of international history, international legal history, because it really opens up.
Yeah, this, this, this, you know, quite problematic way of writing history. So I guess I, you know, this is, I guess quite an institutional history. It's quite macro history. I'm looking at these kind of, you know, broader shifts.
I wish I had been able to, you know, do far more archival research and also look at a range of actors that fall outside of, you know, traditional settings, and how I had more time and sort of a bit more training. And I'm, you know, it's now slowly moving into doing more archival work and my newer projects. But this, I guess, is an attempt to utilize the same at least normative in underpinnings of this sort of turn to history of, of, yeah, trying to open up the ways we think about history and also kind of reflecting upon how history has been used in such a law. And again, as I mentioned, I think that self-determination is such a prime example of how this history has really subsumed a lot of the more radical parts of the history of self-determination.
So you argue that self-determination highlights blind spots of international law and challenges the seeming permanency of discriminating and exclusionary practices. Would you please guide our listeners to your innovative or through your innovative theoretical and historical understanding of self-determination as a potent discursive means that continues to be mobilized in aid of various causes. Yeah, I think that's a very question. So, yeah, so I guess my main, my main sort of argument through this book is, is really to kind of, to point to the way in which self-determination, because it's very unique history in this.
For the sort of intellectual history, which I think resonates, you know, not just within sort of the liberal tradition, but is, you know, so, you know, sort of spread across different political cultures and ideas has created this sort of gap in the international legal order. And because it is this sort of, I'm more of this principle, it's this sort of open ended idea which really lacks definition but has this kind of incredible purchase in, in sort of political theory. It's sort of created this, like wedge in the international system which has allowed people to pursue different, pursue different political ends and projects. So I start off, of course, with the project decolonization, which I think when you read a lot of the classical narratives of self-determination in international law, the way that self-determination was used in the decolonization period is either kind of seen as purely symbolic and I put to this claim made by, by Marty Kreskin in a text he wrote in the early 90s.
That national self-determination that it really wasn't, you know, that much of a strategic claim, it was, yeah, purely symbolic. Or that it sort of, yeah, seen as this harnessing of this idea, you know, that really stems from the Wilsonian idea of self-determination following the one. And I think both of those things are sort of inaccurate because it was far more of a claim to completely unpicking a lot of ideas of, yeah, unequal hierarchies and unequal integration in the international order that exists at this point. And I think at that time as well, there was this incredible sense that there could be change pursued through international institutions and international law.
And there was this, I suppose what I'm saying, this really strategic usage of the idea by different people actors and of course it's pursued primarily through the setting of the human rights bodies during the negotiations of the two covenants, but I don't think it's purely a human rights claim that is made here. And so, you know, it's a very important thing to, to, you know, sovereignty and a certain kind of sovereignty that's made during this point in time. And I think sort of I go back through other periods as well to sort of to show that maybe these junctures that have been written about in in accounts of self-determination have also made a little bit of the nuance in how self-determination has been circulated in use at this time. And so, I think that's the point that I think is the most important thing to do with the post World War I or the interwar period.
You know, there's, I guess in a lot of the kind of classic narratives, there's this idea that this is the point in which, you know, it's mobilized for political aims, but it sort of fails the test of kind of emerging from a political framework to a legal framework. And actually what I want to show is that it is actually incredibly legally important at this point, you know, through the mandate system and through the minority protection schemes and through sort of early cases from the permanent quality of justice where this idea is starting to really curtail the boundaries of sovereignty and the boundaries of what states are eligible to pursue in terms of their national interests. And then of course in the post, not post-colonial period, that's sort of the 1970s where the sort of high of decolonization has sort of painted out to some extent. You know, in classical narratives, that period is sort of it's really missing.
I mean, it was really strange that you would sort of read a text where it would sort of be like the interwar period, the decolonial period, and then it would suddenly pop up again in the 90s with the disintegration of the USSR. And really it was actually circulating quite prominently in the 1970s and 80s, of course, in the 1970s with the new international economic order, but also the idea of the automation, you know, and trying to get it back to what the Western states believed was its kind of core ideals from the Wilsonian sort of political project really popped up in a lot of debates in the 1970s around human rights. And it was this real shift during this period to try and get back to this idea of democratic participation in human rights in that very classic level sense. Yeah, and as you mentioned, I still think it has enormous purchase in the international system because it is this open-ended enormous idea, even though it has been particularly in the 90s where you sort of bound up in this criticism of unrelenting nationalism and you know, I thought it a golem to turn on its creators.
Like there was incredible negativity surrounding self-determination during this time. And I think somehow that's somewhat sad that it's been demonized to the extent it has. I don't think the principle in itself is problematic or bad. I think it's actually a really important sort of gap in international legal system that's otherwise quite monolithic and has allowed people to pursue change and really important change as well.
Obviously with the pursuit of indigenous sovereignty through self-determination and that's still ongoing. But also I think what we're going to start seeing is a lot of these self-determination colonial claims that have seen a sort of setting and a Dundee are probably going to be revisited. I think as we saw with the Chairless Islands case, I think that's probably going to be a new trend is kind of going back and saying, hang on, if we actually look at the sort of the period of the colonization and there was a lot of uncertainty about the point at which it crystallized and the point at which it was actually demanding of the states, particularly in the 1950s, which is to the states still slightly unclear and I think there's a lot of work to be done in this area. I think that's going to give rise to more claims in the international legal system.
So I think the books five chapters are chronologically ordered and you start by diving into the enlightenment roots of the concept as it were briefly where does cell determination come from as an international legal idea. Yeah, so I guess I make part of this sort of intervention that I'm making that this that's all the time has this conceptual ambiguity and that it's provided this platform to make challenge within the international legal system. And so it comes from this particular sort of longer history, which was very bound up to moves through the last two or three centuries, which is it's kind of relationship to sovereignty and statehood and sort of ideas of popular sovereignty. And then this expansion of empire.
And I think those two things go really, really hand in hand and haven't really been explored in self-determination history because it's just, as I mentioned, it comes from this, or this is the belief that it comes from this liberal idea in the enlightenment and it's popular sovereignty and sort of, you know, this progressive unfolding stems from this point and then it's taken up again, you know, particularly in the 19th century during the push towards national statehood and again, you know, it peaks to some extent during the interwar period. So I think what I tried to do in the sort of first chapter is to sort of show how ideas of self-determination, you know, a sort of a far more embedded in, you know, ideas of sovereignty and statehood and empire that are previously being seen. Yeah, and then I sort of, you know, also point to the early claims of self-determination made not explicitly in the terms but sort of with tapping into this sort of normative idea of popular sovereignty, particularly in the South American claims for independence, which were made in the 19th century. So, you know, in the 19th century, the first chapter to take us into the interwar period and stresses how self-determination became the fulcrum of varied attempts to redefine the parameters of imperial wars and expand the boundaries of international society.
How did self-determination help reinvision sovereignty between the world wars? Yeah, so I think, you know, in the 19th, 20s and 30s in particular, you know, you're beginning to see this institutionalization and international law and a lot of changes within ideas of sort of democratic practices and ideas and what a lot of people have pointed to is self-determination, you know, emerging in a tense, but various actors to articulate a new vision of world relations. And of course, I'm going to work by a resmanila, people like Natasha Wheatley, Glenda Sluggar, Nettie Crawford, in which the Nordic foundations of the state are sort of beginning to shift quite dramatically. And I think these sort of early mobilizations of self-determination that are happening, you know, obviously are politically grounded, but they begin to, I think, open up to both political and normative impetus for particularly anti-quarantine.
And particularly anti-quarantine, they're all inclined to self-determination. Of course, this is, you know, through a political project. But I think what's absent from a lot of the accounts of this period is that self-determination is also really emerging as an important sort of legal principle. And this sort of crystallization of self-determination as a kind of legal ideal is also presenting the possibility for these same groups to pursue sort of a legal project to claim independence.
And I think in a lot of accounts of self-determination, you tend to, this period tends to be seen as, you know, it's a political, what's a period of political mobilization, of course, by Vladimir Lenin and Woodrow Wilson, you know, presenting two particular forms of self-determination. But then it sort of fails to make this, you know, jump because it fails to sort of merge within the legal nation's covenant as emerging from politics to law. But what I think that kind of misses is that through particular legal institutional arrangements at this time, and particularly the minority protection regime in the mandate system, there is this emergence of self-determination as a legal idea, as something that can discipline sovereignty and can discipline certain kinds of state action. And so within this, I think this crucial legal space begins to emerge in which domestic political interactions and state action are subject to international oversight, at least in theory.
And that there's this new sort of internal expectation of the juridical state that is being pursued through these regimes. And so I think that it's really here that you begin to see this crucial legal space for marginalized groups who've been kept outside of the social emerging. And this, I think, is really the origins of where the post-war, the equalization move through the UN, actually, it begins. So that's sort of what I try to point to in this chapter.
And of course, I build a lot up on the work of people like Nathaniel Berman and also Karen Knop, who has been a lot of time in their work, many years, and they're sort of exploring how these periods in self-determination history have attempted to be sort of raised from those grand narratives of self-determination that we tend to see in international law. So if you look at the chapter, the chapter is still in four, then focused on self-determination as a revolutionary framework and the key battleground for struggles over hierarchies of sovereignty and international law. You show there how the first groups of anti-colonial actors and activists from the Global South wielded self-determination to challenge the existing normative and legal structures which rendered them unequal. How is your retelling of the story of decolonization different from other historical and theoretical accounts?
And I know we've already touched on this. Maybe you can use a few examples from the text to illustrate the novelty of your argument. So I think, yeah, and of course this is a period that has received a lot of attention in both international legal accounts and also in political theory and IR history. And there are different, I think there's a lot of different takes on what actually happened during this time.
Obviously, there are, I think the big sort of debate has been whether or not self-determination and human rights were sort of one sort of overlapping or sort of integrated project or two distinct projects. And of course, Samuel Moyne has characterized this period of sort of tending to two different projects where people like Christian Reisman as an appointment to the integration of self-determination within the human rights forum. And I tend to agree with the latter, but I don't think it is as simple as simply a human rights claim. I think what is what is what happened during this time is of course the human rights war in these sort of emerging frameworks of human rights provide this backdrop through which these states are beginning to launch the claim to self-determination which they frame in the language of rights, the right to self-determination.
But that's not really all they're doing at this time, that it's far more about challenging ideas of sovereignty and statehood through this approach. And I mentioned, my decontinumies claim that it is this symbolic framework of action and he also posits that decolonization was not accompanied by a challenge to statehood. And I just don't quite agree with that. And I think Adam Gettitude's work as well has pointed to the fact that it was actually a whole scale mobilization of self-determination to sort of change existing modes of sovereignty.
And move away from this exclusion of non-European peoples as unfit for sovereign rule. So it's far less symbolic and far more strategic in this period. And that's why I think I point to that it's also self-determination is accompanied by these demands for non-intervention and economic self-determination at this time as well. And this is sort of trying to recalibrate sovereign expectations and trying to rebalance the international system through self-determination.
So it's not just about independence, it's about completely changing what rights and duties they can expect in the international legal system. So, yeah, and I think then this becomes the point at which these sort of claims that are made during the 1970s and the new international economic order are originating. And I think at this time as well, things like the Goa dispute that happens in 1962, I think is a really prime example of what particular actors are seeing self-determination's normative and legal implications to be at this point. And at this time with this dispute, the Indian delegates before the General Assembly are really pointing to the fact that self-determination has initiated a change to international law.
It's meeting, it's structure that they're pointing to the fact that yes, international law has been a sort of Western sort of development, but now it's being sort of harnessed by states that have formally been excluded from its ambits and they're beginning a new project. And I think that really comes out in the debates surrounding Goa at this period. So, and I think it's also points to the fact that this is a really interesting juncture in the potential for international law. And during the 1950s and 60s, there's far more, I think positivity around what international law can mean for, for particular colonial peoples, and it can be this platform to launch these political projects for change.
So at least in a lot of the debates that come out, there is this sense of incredible radical aspiration for a new world. And this is always countered in these debates by the Western states sort of pointing to trying to reform colonialism and trying to pursue this idea that self colonialism wasn't that bad, or it could be seen as a positive development. And that's really shot down, particularly during the colonial declaration debates, quite prominently. Yeah, and of course then this is this is sort of countenance by the need to sort of reduce the possibility of continuing conflict through the application of the YouTube or the beginning of the 1970s.
And it begins to, I think the problems with approaching self-determination through this kind of open end domains become more prominent at this point. But that doesn't stop, I think these actors from trying to pursue self-determination redefinition and use in new political and economic projects and of course I'm pointing to the new international economic order. And that this is also going hand in hand with this pursuit of grounding non-interference and sort of new forms of sovereignty during this time as well. So I think that's also kind of absent from a lot of the discussions of self-determination is that this is, continues to be circulated by former colonial states throughout the 1970s to reframe this international system in their interests.
And this then is counted, as I mentioned, by particularly Western states who are trying to pursue this new human rights regime, and to push back what they're considering to be negative sovereignty. So now trying to get back to this idea of self-determination that comes from this liberal tradition that guarantees sovereign, or civic participation, democracy in human rights. And this crops up again and again in submissions by Western states to the human rights committee and in discussions of different human rights documents throughout the 1780s. Finally, each other five brings us to the end of history, as it were.
You contend that self-determination has remained a crucial, discursive means of resistance in these ever-changing 21st century confines of international relations. How has the concept been used in continued legal battles over the meaning of sovereign, deep political legitimacy and good governance? Yeah, and I think what you really say in the 1990s is that the ramping up of the project towards integrating self-determination human rights and this emergence of this internal self-determination as trying to, I suppose, re-mallet the problematic tendencies of external self-determination. And this really comes to the fore with the discussions around the Quebec secession movement, the breakup of Yugoslavia, that somehow, yeah, sort of curbing the explosive tendencies of self-determination through human rights, through democratic ideals is this kind of inoculation for the problems of self-determination.
So it is very much, I think, now associated with this idea of self-determination. And of course, that's also given rise to certain other political projects through, for example, Indigenous sovereignty and I suppose also a kind of expansion of minority rights through the idea of self-determination, a sort of demanding, kind of an alternate form of sovereignty to counteract what is kind of a form of sovereignty that's unable to really balance all these different substrate interests into the 21st century. And yeah, and I think that's what, for a lot of international lawyers, the story has sort of ended at that point, that it's now really owning about internal sovereignty, sorry, internal self-determination, and that it's going to be nigh on impossible now to really redraw borders or change state constellations to any degree. And I think if you look at the sort of the discourse around Kosovo as being a sui-generous situation and this kind of strange problematic emergence, that's sort of necessary to sort of back up this claim for human rights, and internal self-determination, they sort of particularly, in particular, Western states have to pursue the right of Kosovo to sui-seed because they have to sort of put them money with them, if they are pursuing this idea of demands on states to guarantee certain rights.
And when this fails, they sort of, yeah, I can't force into a corner to some extent. But I think the idea that this has sort of resolved the problems of self-determination, now we're sort of at a point where it's more clarified or well-defined, I think is not really the case. And I end the book by talking about the Cheggos Islands case, which, yeah, is going back to what happened with the independence of Mauritius in 1960 and pointing to all these irregularities. And yeah, I think this is going to continue to be a topic for debate and discussion for the coming decades.
So, tell the Determination states with us in all its... Oh, absolutely. The Determination and constructive might. Yeah, I mean, of course, you can point to what's been happening with the Russian claims in Ukraine, which is obviously a prime example of how this discourse of self-determination continues to be pursued, and they point to what they say is the kind of hypocrisy of the West in regard to Kosovo.
So, I think this is absolutely not, like it's nothing put to their piety throughout the imagination whatsoever. Where has this project taken you, Dr. McKenna? What are your currents working on?
Yeah, so I guess I really have thought this is my sort of swansong when it comes to determination. But to be honest, I am really interested in particularly this period in the NITVIs, and I think looking back at some of the kind of decolonization processes that were maybe problematic or actually not carried out to the fullest. And what I've been thinking a lot about is the case of Greenland, where because obviously I'm living and working in Denmark. I think Greenland's integration into Denmark was a kind of, the NITVIs was kind of a case of how the political will of states was able to kind of manipulate the decolonization process to their interests.
And there is now such a strong claim for decolonization that's emerging in Greenland, and I'm really wondering if we shouldn't go back to what happened in the period at which Greenland is integrated into Denmark. And you know, revisit the fact that no plebiscite was held, that the process was, there was incorrect information that was given to the UN by the Danish state that one of Denmark's leading international lawyers out of Ross had written a memo to the Danish government saying this is not kosher. But that was dismissed. And I wonder if there is also a reason to go back and have a look at this period and have a look in the archives.
So that's what I'm thinking that I want to do while I'm working on at the moment. Yeah. Fascinating. Dr.
McKenna, it has been a pleasure posting you. Thank you for coming on to talk to us about your fascinating work. Well, thank you very much for having me and letting me talk to you about my book. That's been a pleasure.