Fifteen Eighty Four

We live in a world of States. With the exception of the high seas, outer space, and Antarctica, the entirety of our currently inhabitable environment falls within the jurisdiction of one State or another. States are some of the most powerful entities on our planet in terms of their social, environmental, and economic influence. For instance, almost without exception, States alone possess full military capacity. Moreover, it is characteristically through independent statehood that peoples exercise collective self-determination, gain a sense of shared political identity, and enjoy legal benefits such as diplomatic protection and rights of residence and return in relation to a particular territory.

It is also no surprise that moments of State creation can be so politically controversial. Communities seceding from their ‘parent’ States to form new legal entities characteristically take with them the people and natural resources within their new territories, along with any rights to maritime territory and airspace associated with that land. The political opposition faced by contemporary independence movements, such as those in Catalonia, Hong Kong, or Scotland, demonstrates the extent to which the governments of established States can be resistant to any alteration of their existing borders. Moreover, even if territorial distribution were not a zero-sum game, the creation of new States would nonetheless have sweeping legal implications. For example, it is by now well established that the Russian Federation’s 2014 military occupation of the Crimea was contrary to international law. However, explaining why requires invoking the territorial integrity of Ukraine, which exists precisely because Ukraine possesses statehood. This reason-giving role is what it means for statehood to be an international legal status: States hold a unique place within the international community, and it is their statehood that establishes this fact.

But what does it take to make something a State? Why do some communities possess that status while others do not? Given how important these questions are, it might seem natural for international law provide clear answers about when and how new States emerge, as well as an evident justification for why those answers hold. However, nothing could be further from the truth. The law of State creation is notoriously contentious and complex, characterised more by disagreement and ambiguity in legal practice than by settled uniformity. The most well-known statements of the law are quite vague. For example, the famous arbitral award in Deutsche Continental Gas-Gesellschaft v. Polish State (1929) 9 Recueil TAM 336, provides as follows (at 344):

“In order to say that a State exists…it is enough that [its] territory has a sufficient consistency, even though its boundaries have not yet been accurately delimited, and that the State actually exercises independent public authority over that territory.”

This view, sometimes styled ‘statehood as effectiveness’, is also expressed within Article 1 of the Montevideo Convention on the Rights and Duties of States (adopted 26 December 1933, entered into force 26 December 1934) 165 LNTS 19, which reads as follows:

“The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.”

Although these ‘Montevideo criteria’ widely repeated and often endorsed by legal scholars, the Convention itself was ratified by just nineteen States, making it somewhat light on any real international legal authority. Indeed, set against its emphasis upon factual effectiveness is the altogether different view that statehood arises only through the process of international recognition, whereby existing States confer full membership within the international community upon aspiring polities, thereby elevating them in status and ‘constituting’ them as States. This view, which for several years had fallen out of favour with legal scholars, is once again gaining traction. For example, some argue that the circumstances like those of the Federal Republic of Somalia in the 1990s were fatal to ‘statehood as effectiveness’. In 1991, during a protracted civil war that has continued on and off ever since, the territory of what is now the Republic of Somaliland purported to secede. In the decades that followed, Somalia itself was frequently without effective government, while Somaliland swiftly gained relative ‘calm’ and maintains it to this day. Nonetheless, Somalia continues to receive foreign recognition, whereas Somaliland has received none.

Frustratingly, scholars disagreeing about the correct way to interpret the law in such situations characteristically advance their respective and conflicting positions as the single correct view of largely the same set of social facts: the same treaties, recognition practices, UN General Assembly Resolutions, and so on. Discrete facts, such as the non-recognition of one polity, or the opening of formal diplomatic relations with another, function as paradigms under one approach but are treated as aberrant cases under another, with no means to conclude which competing characterisation of these facts should be preferred. The illusion of indeterminacy that this creates turns in large part on the method of identifying international law that currently dominates, both within the law of State creation and elsewhere. This method, which is called either ‘formalism’ or ‘positivism’, depending upon one’s legal tradition, seeks to establish international law exclusively with reference to social facts of this kind: for them, law is not only grounded upon practice; it is exhausted by what that practice directly entails.

In my view, there is only one way to break this kind of doctrinal deadlock. We must stop asking which account(s) of international law our practices can or must support and start asking which account we should support, given the legal material on State creation we have to work with. In other words, we must view the law of State creation as a site for contestable moral and political arguments about what it should take for new States to arise, the only constraint upon our answers being that they must ‘fit’ existing practice to some plausible degree. By making this move, we can stop arguing in circles and begin having disagreements of a more productive kind.

My new book, Statehood as Political Community: International Law and the Emergence of New States does precisely this. It argues that international law permits state creation only when two abstract conditions are fulfilled. First, emerging States must constitute what I call ‘genuine political communities’: collectives within which particular kinds of ethically valuable behaviour are possible. Second, such communities must emerge in a manner consistent with the ethical importance of individual political action. These two conditions ground, justify, and nuance several more concrete and familiar legal propositions, such as the notion that new States must have ‘effective’ governments and that they cannot emerge via the unlawful use of force. Together, they enable the law governing the creation of new States to be reconstructed as a normatively coherent whole, with what I take to be not only an intelligible but also an attractive set of ethical and moral foundations. My new framework will not, I’m sure, convince everyone. Hopefully, however, it will provoke my colleagues to reflect critically upon how they really ought to reason when attempting to identify the content of international law, both on questions of State creation and beyond.