This chapter considers non-state actors. It argues that only organized, not simply aggregate, groups can have a moral duty to securitize. This chapter goes on to examine relevant sub-state actors’ duties to securitize insiders and outsiders. Sub-state actors are permitted to securitize only when the state they reside in fails in its duty to deliver security. In such cases, relevant actors have a pro tanto obligation to securitize insiders; however, in situations where a quasi-social contract is established this duty evolves into an overriding duty. Outsiders are not – unlike in all the other chapters of this book – people in other states, but rather people not represented by the sub-state actor. Here, a pro tanto obligation to securitize outsiders is largely based on capacity.

At the beginning of the twenty-first century, the sense of a region in crisis had prompted talk of the ‘Africanization’ of the Pacific, with the possibility of state failure creating an ‘arc of instability’ stemming from a malaise in several domestic political settings, all providing opportunities for transnational criminal and terrorist networks to gain a foothold in the region. At least this is how it appeared in some commentaries from Australia. From where New Zealand sits in the regional security scenario, these discourses perhaps seemed rather alarmist, while for most of the Pacific Island states security concerns tended to focus on more immediate, non-traditional threats, including environmental hazards such as adverse climate events impacting infrastructure, productivity and food and water security. Even so, the situations in East Timor, Bougainville and Solomon Islands, in particular, were a matter of life and death for many local people and would only be resolved with external assistance.

This chapter examines the view that state creation requires the existence of a normatively legitimate government. It begins by defining governmental legitimacy, arguing that it is best analysed in terms of the moral justifiability of individual acts of governance, whether viewed individually or in aggregate. Next, it considers what it means for institutions, social conventions, and legal principles to be legitimate before moving on to consider the negative argument that no theory of state creation that excludes a criterion of governmental legitimacy could ever be morally plausible. Having dismissed this objection as mistaken, the chapter then examines a range of legitimacy-based reconstructions, which draw respectively upon the philosophy of Thomas Hobbes, Immanuel Kant, and John Locke. Each position is critiqued and dismissed as an implausible approach to the law of state creation.

Building upon the analysis of the previous chapter, this final critical chapter examines theories of state creation focused upon the protection of human rights and the provision of representative government. Both approaches are examined through the lens of governmental legitimacy, and both are finally dismissed as implausible reconstructions of the relevant legal practice. In the course of this argument, significant attention is given to whether the protection of human rights and the provision of representative government are sufficient to render contemporary governments legitimate, to which a negative answer is ultimately given. In particular, neither the egalitarian credentials of representative government nor its facilitation of popular accountability are as normatively conclusive as many 'democratic statehood' theorists suggest.

This chapter considers the first of two additional reconstructions of state creation under international law, both of which present alternatives to statehood as political community. I call this first alternative 'the stability thesis', given its core claim that the law of state creation is primarily explicable and provisionally justifiable, not in terms of international peace and friendly relations, rather than political community. Two versions of this rational reconstruction are considered. Under the first, stability is secured by seeking to eliminate controversy: on this 'modus vivendi' approach, only those standards that meet broad international consensus should be considered legally relevant to the creation of states. Under the second, which prioritises substance over consensus, international practice is reconstructed so as to prioritise legal standards that are maximally conducive to stability in and of themselves. Ultimately, I argue that we should reject both versions of the stability thesis. Although international peace is morally important, both within state creation and otherwise, it cannot function as the primary normative foundation for this area of law.

In some ways the position of international organizations in international law is reminiscent of the status of women in national law. It is accepted — with varying degrees of enthusiasm — that they are subjects of the law with a claim to rights and obligations equivalent to those of States, where a need for different treatment is not inherent in their nature. At the same time, there is controversy as to the “inherent” differences and their implications. The imagination to define the needs that are different from those of States and to provide appropriate solutions is signally lacking. Inertia, far more than active resistance, is an obstacle to adaptation of the law even where particular needs are identified.

This conclusion briefly summarises the argument of the book before considering its implications for two connected questions: the 'nature' or 'essence' of statehood under international law and the principle of state continuity. In relation to the latter, it advances a tentative additional principle for political membership that might be taken to explain the presumption of continuity as it applies to contemporary states. It also considers, albeit briefly, the current position of small island states, many of which are at risk of losing their inhabitable land due to human-caused climate change. As regards the nature or essence of statehood, the conclusion takes a somewhat sceptical view of attempts to characterise states in relation to one or more discrete concepts, arguing that not even statehood as political community should be viewed as an exhaustive account of what states 'really' are.