Hamid & Wouters: Rule of Law and Areas of Limited Statehood: Domestic and International Dimensions

Linda Hamid (KU Leuven - Leuven Centre for Global Governance Studies & Institute for International Law) & Jan Wouters (KU Leuven - Law) have published Rule of Law and Areas of Limited Statehood: Domestic and International Dimensions (Edward Elgar Publishing 2021). The table of contents is here. Here's the abstract:

This thought-provoking book addresses the legal questions raised by the nexus between the rule of law and areas of limited statehood, in which the State lacks the ability to exercise the full depth of its governmental authority. Working from an international law perspective, it examines the implications of limited statehood for the traditional State-based framing of the international legal order.

Featuring original contributions written by renowned international scholars, chapters investigate key issues arising at the junction between domestic and international rule of law and areas of limited statehood, as well as the alternative modes of governance that develop therein, both with and without the approval of the State. Contributors discuss the impact of contested sovereignty on the rule of law, international responsibility with regard to rebel governance in areas of limited statehood and the consequences of limited statehood for international peace and security.

Ronen: Palestine in the ICC: Statehood and the Right to Self-determination in the Absence of Effective Control

Yaël Ronen (Academic Center for Science and Law - Law; Hebrew Univ. - Minerva Center for Human Rights) has posted Palestine in the ICC: Statehood and the Right to Self-determination in the Absence of Effective Control (Journal of International Criminal Justice, forthcoming). Here’s the abstract:

This article examines two propositions relating to the role of the right to self-determination with regard to statehood, as put forward by the Office of the Prosecutor of the International Criminal Court (ICC). One proposition is that the right to self-determination can compensate for a shortfall in effective control that might otherwise bar recognition of the territory as a state. The other proposition is that when effective control is lacking because of illegal obstruction of the realization of the right to self-determination, recognition of statehood may be an appropriate response regardless of the facts. The article argues that these propositions are neither substantiated in existing law, nor can they be said to be matters of the progressive development of the law. For this, the article analyses instances where statehood was allegedly recognized prior to the consolidation of effective control and which are cited as reflecting the propositions. It shows that these instances do not support the propositions. With respect to the second proposition, the article argues that it is inadvisable as lex ferenda, nor applicable in the Palestine case.

Nicholson: Statehood and the State-Like in International Law

Rowan Nicholson (Univ. of Sydney - Law) has published Statehood and the State-Like in International Law (Oxford Univ. Press 2019). Here's the abstract:

If the term were given its literal meaning, international law would be law between 'nations'. It is often described instead as being primarily between states. But this conceals the diversity of the nations or state-like entities that have personality in international law or that have had it historically. This book reconceptualizes statehood by positioning it within that wider family of state-like entities.

In this monograph, Rowan Nicholson contends that states themselves have diverse legal underpinnings. Practice in cases such as Somalia and broader principles indicate that international law provides not one but two alternative methods of qualifying as a state. Subject to exceptions connected with territorial integrity and peremptory norms, an entity can be a state either on the ground that it meets criteria of effectiveness or on the ground that it is recognized by all other states. Nicholson also argues that states, in the strict legal sense in which the word is used today, have never been the only state-like entities with personality in international law. Others from the past and present include imperial China in the period when it was unreceptive to Western norms; precolonial African chiefdoms; 'states-in-context', an example of which may be Palestine, which have the attributes of statehood relative to states that recognize them; and entities such as Hong Kong.

Donaldson: The League of Nations, Ethiopia and the Making of States

Megan Donaldson (Lauterpacht Centre for International Law) has posted The League of Nations, Ethiopia and the Making of States (Humanity, forthcoming). Here's the abstract:

This article takes the Ethiopian case as a lens on how the existence of the League refracted approaches to statehood and belonging for polities on the margins of the “family of nations.” Unlike many other doctrinal or historical treatments, this article does not focus on any one juridical concept or doctrine, such as sovereignty, statehood, or recognition. Rather, it traces the flux within concepts, and the uneasy relation between them, which come to light when public statements in the League are read alongside deliberations within European foreign ministries, and projects of reform pursued in Ethiopia itself. Refocusing on the complexity of contemporary discussions reveals how juridical approaches have shifted over time in their relation to concrete factors such as military force, bureaucratic organization and political structures, and bridges a distinction entrenched by disciplinary demarcations in the secondary literature on statehood and state-making.

Garcia: La reconnaissance du statut d'Etat à des entités contestées : approches de droits international, régional et interne

Thierry Garcia (Université Grenoble Alpes - Law) has published La reconnaissance du statut d'Etat à des entités contestées : approches de droits international, régional et interne (Pedone 2018). Contents include:

• Jean d’Aspremont, The International Law of Statehood and Recognition : A Post-Colonial Invention
• Antonello Tancredi, Evolution historique des critères de reconnaissance du statut d’Etat à des entités contestées
• Catherine Maia, Les critères de l’obligation de non-reconnaissance du statut d’Etat à des entités contestées
• Maurizio Arcari, Reconnaissance du statut d’Etat à des entités contestées et responsabilité internationale
• Béatrice Bonafé, La CIJ et la reconnaissance du statut d’Etat à des entités contestées
• Emilie Legris & Dimitri Walas, La reconnaissance de la qualité d’Etat à « Daesh » dans le cyberespace
• Anne Hamonic & Cécile Rapoport, L’Union européenne et la reconnaissance du statut d’Etat à des entités contestées
• Alexis Marie, La Cour de justice et les entités contestées : entre prudence et frilosité Mihaela Anca Ailinca, La Cour européenne des droits de l’homme et la reconnaissance du statut d’Etat à des entités contestées
• Djacoba liva S. Tehindrazanarivelo & Makane Moïse Mbengue, L’Union africaine et la reconnaissance du statut d’Etat à des entités contestées
• Sabine Lavorel, Les juridictions interaméricaines de protection des droits de l’Homme et le statut contesté des peuples autochtones
• Constance Chevallier-Govers, L’ASEAN et la reconnaissance du statut d’Etat à des entités contestées
• Laurent Trigeaud, Les reconnaissances d’Etat devant le Parlement français
• Alina Miron, La reconnaissance du statut d’Etat à des entités contestées au regard des autorités juridictionnelles françaises
• Paolo Palchetti, Juge interne et entités territoriales contestées : entre prérogatives des organes politiques et application du droit international
• Louis Balmond, Conclusions

Eslava & Pahuja: The Nation-State and International Law: A Reading from the Global South

Luis Eslava (Univ. of Kent, Canterbury - Law) & Sundhya Pahuja (Univ. of Melbourne - Law) have posted The Nation-State and International Law: A Reading from the Global South (Humanity: An International Journal of Human Rights, Humanitarianism and Development, forthcoming). Here's the abstract:

In this article we re-describe the relationship between international law and the nation-state, reversing the usual imagined directionality of the flow between the two. At its most provocative, our argument is that rather than international law being a creation of the state, making the state is an ongoing project of international law. In the article, we draw on the example of the institutionalised project of development to illuminate the ways in which international law creates, and maintains nation-states, and then recirculates from a point ‘within’ them.

d'Aspremont: The International Law of Statehood and Recognition: A Post-Colonial Invention

Jean d'Aspremont (Univ. of Manchester - Law; Sciences Po - Law) has posted The International Law of Statehood and Recognition: A Post-Colonial Invention (in La Reconnaissance du Statut d’Etat à des Entités Contestées, T. Garcia ed., forthcoming). Here's the abstract:

This contribution seeks to lay bare some of the main conceptual, theoretical, and normative constructions that have informed the rise of the doctrine of statehood into one of the fundamental doctrines of international law and allowed it to continue to prove most influential in contemporary international legal discourses. In doing so, this contribution will make the point that the doctrine of statehood has been shaped by both modern and post-colonial heritages. It will be shown that the main components of the doctrine of statehood are very modern in that they are directly inherited from liberal legal thought. It will simultaneously be demonstrated that it is only in the second half of the 20th century, and more precisely in the wake of the start of the decolonisation process, that all these modern components were assembled and organised in order to compose what is known today as the doctrine of statehood.

Wheatley: Spectral Legal Personality in Interwar International Law: On New Ways of Not Being a State

Natasha Wheatley (Princeton Univ. - History) has published Spectral Legal Personality in Interwar International Law: On New Ways of Not Being a State (Law and History Review, Vol. 35, no. 3, pp. 753-87, August 2017). Here's the abstract:

That spirits and gods, devils and idols, should be endowed with legal rights and enjoyments is again a practice as common as it seems to be ancient. Perhaps you will go to the length of saying that much the most interesting person that you ever knew was persona ficta. In May 1926, the German Society for International Law discussed the foundational question of the subjects of international law. “Who can appear independently before international forums? only states? or also others, particularly individuals?” asked the speaker, Godehard Josef Ebers, a professor at the University of Cologne. The topic possessed a strange novelty. “In the nineteenth century one hardly even considered the problem,” Ebers noted incredulously. Now it appeared both neglected and pressing. The society's resolutions that year recognized that ever more non-state “factors”—including groups such as minorities as well as individuals—were emerging as the bearers of international rights and duties. The appearance of these new subjects suggested a transformation in the deep conceptual substructure (Grundauffassung) of international law, which had hitherto recognized states alone as international persons.

Dijxhoorn: Quasi-state Entities and International Criminal Justice

Ernst Dijxhoorn (King’s College London - Department of War Studies) has published Quasi-state Entities and International Criminal Justice: Legitimising Narratives and Counter-Narratives (Routledge 2017). Here's the abstract:

This book explores the intended and unintended impact of international criminal justice on the legitimacy of quasi-state entities (QSEs). In order to do so, the concept of ‘quasi-state entity’ is introduced to distinguish actors in statehood conflicts that aspire to statehood, and fulfil statehood functions to a greater or lesser degree, including the capacity and willingness to deploy armed force, but lack the status of sovereign statehood. This work explores the ability of QSEs to create and maintain legitimacy for their actions, institutions and statehood projects in various constituencies simultaneously. It looks at how legitimacy is a prerequisite for success of QSEs and, using critical legitimacy theory, assesses the legitimating narratives of QSEs and their statehood adversaries. The book links international criminal justice to statehood projects of QSEs and their success and legitimacy. It looks at the effects of international criminal justice on the ability to create and maintain legitimacy of QSEs, an approach that leads to new insights regarding international courts and tribunals as entities competing with states over statehood functions that increasingly have to take the legal implications of their actions into consideration. Most important, a close assessment of the legitimising narratives of QSEs, counter narratives, and the messages sent by international criminal justice with which QSEs have to deal, and their ability to overcome legitimacy crises, provides insight on QSEs and the complex processes of legitimation.

Garcia: La Palestine : d'un Etat non membre de l'Organisation des Nations Unies à un Etat souverain ?

Thierry Garcia (Université Grenoble Alpes - Law) has published La Palestine : d'un Etat non membre de l'Organisation des Nations Unies à un Etat souverain ? (Pedone 2016). Contents include:

• Louis Balmond, Etat palestinien
• Robert Kolb, La question de la Palestine et la politique juridique
• Thierry Garcia, La Palestine au sein du système des Nations Unies
• Antonello Tancredi, Le droit à l’autodétermination du peuple palestinien
• Pierre Bodeau-Livinec, La Palestine, d’un Etat non-membre à l’ONU à un Etat souverain ? L’opposition des Etats à l’accession de la Palestine aux traités multilatéraux dans le cadre onusien
• Paolo Palchetti, La participation de la Palestine à la procédure devant la Cour internationale de Justice
• Jean-François Guilhaudis, D’un Etat non membre de l’ONU à un Etat souverain ?
• Manuel Eynard, La relation juridique entre la Palestine et le Procureur de la Cour pénale internationale
• Catherine Maia, Les positions politiques et les justifications juridiques des Etats au regard de la reconnaissance (ou non reconnaissance) de la qualité d’Etat de la Palestine
• Emilie Legris & Dimitri Walas, La reconnaissance de l’Etat de Palestine dans le cyberespace
• Jean-Christophe Martin, L’Union européenne et la reconnaissance de l’Etat palestinien
• Josiane Auvret-Finck, Le partenariat Union Européenne-Palestine
• Maurizio Arcari, Conclusions

Torres Camprubí: Statehood under Water: Challenges of Sea-Level Rise to the Continuity of Pacific Island States

Alejandra Torres Camprubí (Fridjthof Nansen Institute) has published Statehood under Water: Challenges of Sea-Level Rise to the Continuity of Pacific Island States (Brill | Nijhoff 2016). Here's the abstract:

In Statehood under Water, Alejandra Torres Camprubí revisits the concept of statehood through an analysis on how sea-level rise and the Anthropocene challenge the territorial, demographical, and political dimensions of the State. Closely examining the fight for survival undertaken by low-lying Pacific Island States, the author engages with the legal and policy innovations necessary to address these new scenarios.

This monograph reacts against overly formal approaches to the law on statehood, and is devoted to the reconstruction of the context in which both the challenges, and the measures adopted to tackle them, are taking place. Progressively forged within the international community, it is the kind of political and ethical framework that will soon inform the potential transformation of the law on statehood.

Wheatley: The Emergence of New States in International Law: The Insights from Complexity Theory

Steven Wheatley (Lancaster Univ. - Law) has posted The Emergence of New States in International Law: The Insights from Complexity Theory (Chinese Journal of International Law, forthcoming). Here's the abstract:

Doctrinal controversies and the disputed international status of Kosovo and Palestine suggest that it is difficult for us international lawyers to know with any certainty when a new State has emerged in the international community. The contention here is that we should look to systems theory thinking—specifically complexity theory—to make sense of the law on statehood. Systems theory directs us to conceptualize the State in terms of patterns of communications adopted by law and politics actors and institutions and applied to subjects. Complexity tells us that these patterns develop without any central controller or guiding hand and that they exist only as a consequence of the framing of law and politics communications by a third party observer. The argument developed in this article is that these insights can provide the intellectual “scaffold” around which we can build our model of the international law on statehood.

Aust: Fundamental Rights of States: Constitutional Law in Disguise?

Helmut Aust (Humboldt-Universität zu Berlin - Law) has posted Fundamental Rights of States: Constitutional Law in Disguise? (Cambridge Journal of International and Comparative Law, forthcoming). Here's the abstract:

This contribution analyses the development of the doctrine of fundamental rights of states in German international law doctrine. It shows how the doctrine, despite its natural law origins, was able to adapt and flourish in a more positivist environment in the late 19th and early 20th century. It was highly malleable with respect to the uses to which it was put. Accordingly, it was both relied on in order to support National Socialist conceptions of international law as well as to connect with a return to natural law after World War II. With a turn to more pragmatist approaches in German scholarship since the middle of the 20th century the doctrine seemed to have faded away. However, the contribution argues that it has witnessed a somewhat unexpected comeback. Driven by some functional and constructive analogies with parts of the constitutionalisation literature, it is possible to see traces of the doctrine reemerge. In this respect, it may even be said to resemble parts of the recent case law of the German Federal Constitutional Court which has put a strong emphasis on sovereignty and self-determination as limits towards international and European integration.

d'Aspremont: The Doctrine of Fundamental Rights of States and the Functions of Anthropomorphic Thinking in International Law

Jean d'Aspremont (Univ. of Manchester - Law; Univ. of Amsterdam - Law) has posted The Doctrine of Fundamental Rights of States and the Functions of Anthropomorphic Thinking in International Law (Cambridge Journal of International and Comparative Law, forthcoming). Here's the abstract:

This article recalls the various manifestations of the anthropomorphic doctrine of the fundamental rights of states with a view to critically examining the various functions of anthropomorphic thinking in international law. This allows the article to provide some critical insights on the remnants of the doctrine of fundamental rights of states and the role played by those anthropomorphic residues in contemporary international law. This article is built on a diachronic examination of the functional changes which the doctrine of fundamental rights of states underwent since its origin. This article, after some introductory considerations on the relations between rights and anthropomorphic thinking, examines how anthropomorphic thinking materialised in the form of a doctrine of fundamental rights of states and came to thrive in international legal thought. The article then turns to the manifestation of the doctrine of fundamental rights of states in the inter-American and United Nations contexts with a view to shedding light on the functions that such positive rules pertaining to the fundamental rights of states were meant to play in the international legal order. The article subsequently discusses the demise of the classical doctrine of fundamental rights of states and the foundering of the codification process in order to examine the role that the remains thereof are meant to play in contemporary international law. It ends with a few concluding remarks on the ubiquity of anthropomorphic thinking about international law. Throughout this examination of the functions of the anthropomorphic doctrine of fundamental rights of states, this article espoused the view that, in of contemporary legal argumentation, the notion of fundamental right of state does not constitute any autonomous construction to which specific legal effects are ascribed but rather a textual package of contestation and resistance.

d'Aspremont: The International Law of Statehood: Craftsmanship for the Elucidation and Regulation of Births and Deaths in the International Society

Jean d'Aspremont (Univ. of Manchester - Law) has posted The International Law of Statehood: Craftsmanship for the Elucidation and Regulation of Births and Deaths in the International Society (Connecticut Journal of International Law. Vol. 29, 201-224, 2014). Here's the abstract:

This article argues the law of statehood is best construed as a delicate elixir which allows international lawyers, not only to make state creation a legal phenomenon worthy of legal investigation, but also to claim control of the volatile phenomenon of births and deaths in the international society. In spelling out this argument, this article seeks to shed light on the main methodological moves unfolding in the international law scholarship devoted to the law of statehood and speculate about the specific rationales behind them. It specifically shows that the law of statehood is informed not only by a regulatory and explanatory agenda but also by a few intra- and extra- professional dynamics.

Jain: The 21st Century Atlantis: The International Law of Statehood and Climate Change-Induced Loss of Territory

Abhimanyu George Jain (High Court of Delhi; Georgetown Univ. - Law) has posted The 21st Century Atlantis: The International Law of Statehood and Climate Change-Induced Loss of Territory (Stanford Journal of International Law, forthcoming). Here's the abstract:

International law demands territory as a precondition for statehood. If the Maldives loses its territory as a result of climate change, will it cease to be a state? In light of the negligible contribution of Maldives and similar states to climate change, if they were to lose their statehood and international legal personality on account of climate change, serious questions would arise as to the legitimacy and efficacy of international law. But these states will not lose their statehood, for three reasons. First, in light of the diminishing utility of territory for states, at least for the continuation of established states, territory need not be a necessary requirement. Second, international law is silent as to the extinction of statehood upon physical disappearance of statehood, and equity demands that statehood be preserved in this situation. Third, the political realities of recognition will operate to ensure continuing statehood. But this continuing statehood begs the question of how these states will exist without territory. There are two options: acquisition of new territory or de-territorialised existence. Both are possible but present significant practical hurdles. In the short term, the de jure statehood of these states will be protected, but in the longer term, it is likely that they will cease to exist as states de facto.

Vidmar: Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice

Jure Vidmar (Univ. of Oxford - Law) has published Democratic Statehood in International Law: The Emergence of New States in Post-Cold War Practice (Hart Publishing 2013). Here's the abstract:

This book analyses the emerging practice in the post-Cold War era of the creation of a democratic political system along with the creation of new states. The existing literature either tends to conflate self-determination and democracy or dismisses the legal relevance of the emerging practice on the basis that democracy is not a statehood criterion. Such arguments are simplistic. The statehood criteria in contemporary international law are largely irrelevant and do not automatically or self-evidently determine whether or not an entity has emerged as a new state. The question to be asked, therefore, is not whether democracy has become a statehood criterion. The emergence of new states is rather a law-governed political process in which certain requirements regarding the type of a government may be imposed internationally. And in this process the introduction of a democratic political system is equally as relevant or irrelevant as the statehood criteria. The book demonstrates that via the right of self-determination the law of statehood requires state creation to be a democratic process, but that this requirement should not be interpreted too broadly. The democratic process in this context governs independence referenda and does not interfere with the choice of a political system.

Vidmar: Palestine and the Conceptual Problem of Implicit Statehood

Jure Vidmar (Univ. of Oxford - Law) has posted Palestine and the Conceptual Problem of Implicit Statehood (Chinese Journal of International Law, forthcoming). Here's the abstract:

The General Assembly has accorded to Palestine the status of a non-member observer state in the UN. Some commentators have taken the position that Palestine's legal status as a state has thus been confirmed. This article draws on historical examples to demonstrate that the status of non-member state is not necessarily granted only to states. The recent vote in the General Assembly, therefore, neither confirmed nor altered the legal status of Palestine. But irrespective of this vote, Palestine nevertheless has a previously-acquired international capacity to act like a state and can, inter alia, become a party to the ICC Statute and bring a case to the ICJ. Such a capacity could be seen as an implicit confirmation of statehood. This article, however, demonstrates that state creation cannot be an implicit side-effect of international treaties or voting procedures in international organizations. Not even (full) membership of the UN is an exception.

French: Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law

Duncan French (Univ. of Lincoln - Law) has published Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law (Cambridge Univ. Press 2013). The table of contents is here. Here's the abstract:

The concepts of statehood and self-determination provide the normative structure on which the international legal order is ultimately premised. As a system of law founded upon the issue of territorial control, ascertaining and determining which entities are entitled to the privileges of statehood continues to be one of the most difficult and complex issues. Moreover, although the process of decolonisation is almost complete, the principle of self-determination has raised new challenges for the metropolitan territories of established states, including the extent to which 'internal' self-determination guarantees additional rights for minority and other groups. As the controversies surrounding remedial secession have revealed, the territorial integrity of a state can be questioned if there are serious and persistent breaches of a people's human rights. This volume brings together such debates to reflect further on the current state of international law regarding these fundamental issues.

Cerone: Legal Implications of the UN General Assembly Vote to Accord Palestine the Status of Observer State

John Cerone (New England Law | Boston) has posted an ASIL Insight on Legal Implications of the UN General Assembly Vote to Accord Palestine the Status of Observer State.