Chapter 5 examines the evolving legal context and the practical effectiveness of CoE interactions with the central case study, Kosovo. Kosovo is a sui generis case, distinct from all others, but it is an appropriate case study as it has faced and, in several cases, overcome similar engagement challenges. Over more than two decades, the CoE has innovated and adapted its relationship with Kosovo, and so this chapter seeks to illustrate the pragmatism and creativity which can be employed when the political will to do so is in place. The chapter elaborates the principle of engagement on the basis of ‘functional capacity’ and the practice of monitoring substitution.

Building upon my previous account of the antecedents of statehood, this chapter establishes five procedural principles that further condition the emergence of new states. These principles can be split into two sets: those that establish means for state creation through which valuable politics can either be instantiated or enhanced, and those that either prohibit or restrict state creation through means that violate or disrupt political action. The first set comprises the 'recognition principle' and the 'referendum principle', which determine the legal salience of foreign recognition and independence referendums. The second set comprises the 'negative self-determination principle', the 'international peace principle', and the 'territorial integrity principle'. These three relate, respectively, to the international legal prohibitions against mass disenfranchisement and political subordination, the unlawful threat or use of force, and the violation of an established community's territorial integrity. These five principles provide a procedural framework for state creation, which, along with the antecedents of statehood, collectively comprise 'statehood as political community'.

This chapter draws upon the normative resources of political community to construct an account of the 'antecedents' of statehood: the factual prerequisites that nascent entities characteristically must demonstrate in order to mount a plausible statehood claim. These antecedents, which will be familiar to doctrinal lawyers from sources such as the 1933 Montevideo Convention on the Rights and Duties of States, are: a permanent population, a relatively determinate territory, an 'effective' government, and some degree of governmental independence. In addition to grounding each antecedent within both historical and contemporary practice, this chapter demonstrates their coherence with the ethical value of politics, thereby reconstructing these elements of international law into a normatively coherent whole. Several aspects of this reconstruction will strike readers familiar with state creation as controversial. In particular, I advance a novel conception of governmental 'effectiveness' that turns upon the capacity of nascent states to facilitate ethically valuable political action.

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.

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.

The state concept is one of the oldest in the study of politics. It features prominently in the analysis of the founders of modern social science, Max Weber and Karl Marx, the former focusing especially on its inner workings (i.e., the state as organization), the latter on its relation to society. Since the early days of social science research on the state, the focus in Comparative Politics has been on both its role in economic development and in nation-building, resulting in the emergence of two research traditions, one centred on statecraft, the other on statehood. Much of the state literature has assumed the presence of an already cohesive political community, the nation-state. State formation in Europe and Asia was the outcome of the dissolution of empires. The emerging states in the early 20th century were all grounded in specific national identities. African states were also born as empires vanished, but they were not formed around nationalities. The colonial powers had assembled multiple pre-agrarian societies into territories with the purpose of conquest and development. Thus, when Africans gained independence, they had to accept a statehood that was not aligned to nationhood. Because the African state-nation is still a project in the making, the exercise of power relies heavily on such means as co-optation and mutual transactions. African leaders must balance the conflicting pressures from tribe and the larger political community, which limits the capacity of the instruments the state to conduct their business. Instead, it encourages modes of governance that are either rivalrous or monopolistic. Lasting political settlements tend to be transactional compromises involving power-sharing, rather than institutional arrangements that facilitate the conduct of state business. Success in the pursuit of such compacts often involves the use of informal institutions that help overcome the rigidity of formal rules.

This chapter analyzes the negotiations for the 1970 Friendly Relations Declaration, the high-water mark of efforts by socialist and non-aligned states to win support for an expansive interpretation of national self-determination. Lawyers and diplomats from industrialized states typically argued that the right to self-determination could be exercised in a number of different ways, including loose association or confederation. They also maintained that self-determination, understood as a human right, could be secured through adequate recognition within states and did not necessarily require secession. By contrast, those speaking on behalf of the states and peoples of Asia, Africa, and other zones of decolonization framed self-determination in more capacious terms, as a right to ‘economic’ no less than ‘political’ sovereignty. Arguing that formal independence meant little if decolonized states remained hampered by earlier arrangements, they called for an international redistribution of rights and resources. They also stressed that the right to self-determination permitted armed struggle against colonial and occupying powers. Crafted through close engagement with such arguments, the 1970 resolution formalized an unsteady compromise between these two approaches, encouraging self-determination but never so far as to destabilize a fragile interstate system undergoing extensive reconfiguration.

This chapter critically examines Palestine’s unsuccessful 2011 UN membership bid. It examines the report of the UN Committee on the Admission of New Members which, under US pressure, could not unanimously recommend Palestine’s membership to the Security Council after examining whether Palestine satisfied the criteria for membership as set out in article 4(1) of the UN Charter. Propelled by this unsuccessful bid, Palestine turned to the General Assembly which upgraded its status to that of a non-Member Observer State in 2012. Although the legal consequences of this upgrade have been considerable, including allowing the State of Palestine to accede to a host of international treaties and multilateral organizations, its juxtaposition against the refusal of the Committee on the Admission of New Members to recommend membership to the Security Council in accordance with the international rule of law is demonstrative, yet again, of the international rule by law principle at work. Although the UN has allowed for a gradual and qualified recognition of Palestinian legal subjectivity over time, its failure to provide the legal and political foundation upon which those rights may actually be realized, namely membership in the Organization, has continued to disenfranchise Palestine and its people.

This chapter argues against mainstream IR, which tend to only identify deficit of governance in ‘areas of limited statehood’. It presents the results of a structured comparison between Uganda and Cameroon. Taking the historicity of state seriously, the authors argue, brings to the fore that what is usually considered to be recent crisis, has it long roots in the past of how states have been formed. The four features that are highlighted are as follows. First, both Uganda and Cameroon are highly internationalized structures of domination. Second, both polities present a bifurcation inherited form the colonial regime between ‘citizens’ from ‘subjects’ (Mamdani). Third, both states make intensive use of the strategy of ‘discharge – i.e.the delegation of functions to private or semi-private agencies without giving up final control of them’ (Hibou). Fourth ‘power without knowledge’ (Breckenridge) is a central feature of state politics. The chapter ultimately argues against conventional narratives on modern statehood that ignore such important historical imprints.

This chapter covers three areas of international law that, though distinct, are interconnected. The law of statehood defines which entities qualify as states, the most important actors on the world stage and the international legal persons with the most rights, duties and functions. The law of self-determination accords rights to ‘peoples’ rather than to states, but in limited circumstances it enables peoples to create new states for themselves. That can be a way for a people to seize control of its own destiny, especially if it has been subject to colonialism or oppression. Finally, the law of territory determines the geographical borders within which many of the rights, duties and functions of states are applicable, including how those borders can change.

Chapter 1 shows that the discussions which dominated intellectual and public life in the years immediately preceding the publication of Hegel’s Philosophy of Right revolved around the constitutional question as the central and definitive element of political discourse in Germany. It argues that Hegel consciously entered this constitutional debate and that his book constituted a timely intervention in the politics of the immediate post-Napoleonic period. By demonstrating the pan-German and European dimensions of contemporary constitutional concerns, Hegel’s political thought is at the same time lifted out of the exclusively Prussian context to which it has so often been confined.

This chapter deals with the German position on States and their organs. It is divided into five parts; territorial sovereignty, political independence, Statehood and recognition, organs of the State and their status and State succession. The first part deals with the legal consequences of Germany’s non-recognition of the Russian annexation of Crimea while distinguishing the same from sanctions policies, Germany’s position on the international legal status of Nagorno-Karabakh, which is a disputed territory between Armenia and Azerbaijan, Germany’s views on the presence of Thailand’s king in and his conduct of State affairs from Germany and Germany’s position on Israel’s annexation plans in the Occupied Palestinian Territories. The second part addresses Germany’s response to the new Hong Kong national security law, and Germany’s position on Taiwan. The third part, statehood and recognition, encompasses Germany’s opinion on Palestine not being a State party to the Rome Statute of the International Criminal Court, Germany’s non-recognition of the ‘Nagorno-Karabakh Republic’, and Germany’s support of Taiwan’s participation in the World Health Assembly as an observer.