To Be or Not to Be: The Ontological Predicament of State Creation in International Law

The European Journal of International Law Vol. 28 no. 2 © The Author, 2017. Published by Oxford University Press on behalf of EJIL Ltd. All rights reserved. For Permissions, please email: Janis Grzybowski* Abstract International law is classically based on a system of states whose members it attempts to identify by virtue of their effectiveness, their recognition by other states, and their creation in accordance with the rules of international law. In this article, I illustrate the indeterminacy of these three dimensions and argue that assessments of individual state creations are instead necessarily based on blunt, but silent, ontological commitments to any potential state’s full presence or absence. While the ‘great debate’ between declaratory and constitutive doctrines of recognition has emphasized, but not finally determined, the ontology of the state, attempts to find compromises between material effectiveness and constitutive recognition as well as the turn towards the proper legal regulation of state creation have only bracketed and invisibilized its decisive role. The deconstruction of state identifications reveals an essentially empty state ontology that confronts scholars and practitioners with the predicament of having to ultimately presuppose any particular state’s existence or its absence. This not only allows for reflecting on the stakes of individual assessments but also shows how all state identifications inevitably reproduce the hegemonic image of an exclusive and neatly delineated state system that brings its unruly fringes under control time and again. If we give the state a transcendental status, it disappears from the world; if we see it merely as a set of empirical attributes, it disappears in the world. – E. Ringmar, ‘On the Ontological Status of the State’1 * 1 European School of Political and Social Sciences, Université Catholique de Lille, Lille, France; University of Helsinki, Helsinki, Finland. E-mail: . The author would like to thank Martti Koskenniemi, Anne Peters, Jens Bartelson, Wouter Werner, Ukri Soirila, Farrah Hawana and two anonymous reviewers for their helpful comments on earlier drafts of this article. He would also like to thank the Max Planck Institute for Comparative Public Law and International Law for a scholarship to work at its premises in Heidelberg, Germany, as well as the Swiss National Science Fund for earlier support lent to this research. E. Ringmar, ‘On the Ontological Status of the State’, 2 European Journal of International Relations (1996) 439, at 439. EJIL (2017), Vol. 28 No. 2, 409–432 doi:10.1093/ejil/chx031 To Be or Not to Be: The Ontological Predicament of State Creation in International Law 410 EJIL 28 (2017), 409–432 1 Introduction: International Law and State Ontology 2 3 4 5 6 7 8 9 Rome Statute of the International Criminal Court 1998, 2187 UNTS 90. Office of the Prosecutor of the ICC, Situation in Palestine, 3 April 2012, available at www.icc-cpi.int/NR/ rdonlyres/C6162BBF-FEB9-4FAF-AFA9-836106D2694A/284387/SituationinPalestine030412ENG. pdf (last visited 5 December 2016). International Criminal Court (ICC), The Prosecutor of the International Criminal Court, Fatou Bensouda, Opens a Preliminary Examination of the Situation in Palestine, 16 January 2015, available at www. icc-cpi.int/Pages/item.aspx?name=pr1083 (last visited 5 December 2016); GA Res. 67/19, 29 November 2012. For instance, the USA criticized the decision of the ICC by reiterating its position that ‘we do not believe that Palestine is a state and therefore we do not believe that it is eligible to join the ICC’. US Department of State, 16 January 2015, available at www.state.gov/r/pa/prs/ps/2015/01/236082.htm (last visited 5 December 2016). Quigley, ‘The Palestine Declaration to the International Criminal Court: the Statehood Issue’, 35 Rutgers Law Record (RLR) (2009) 1. See also already Boyle, ‘The Creation of the State of Palestine’, 1 European Journal of International Law (EJIL) (1990) 301. Ash, ‘Is Palestine a “State”? A Response to Professor John Quigley’s Article’, 36 RLR (2009) 186. See also already J. Crawford, The Creation of States in International Law (2nd edn, 2006), at 434–448. G. Jellinek, Allgemeine Staatslehre (1900); see also Grant ‘Defining Statehood: The Montevideo Convention and Its Discontents’, 37 Columbia Journal of Transnational Law (1999) 403, at 416. M. Shaw, International Law (5th edn, 2003), at 181. Despite its ostensibly theoretical nature, the ontological question of what states actually ‘are’ is in fact located at the very heart not only of the international legal order but also of current controversies about practical legal questions. A case in point is Palestine’s bid to put itself under the jurisdiction of the International Criminal Court (ICC) and even become a proper state party to the Rome Statute.2 While the ICC rejected Palestine’s request for opening investigations in April 2012 because it had doubts about its status as a state,3 it eventually welcomed it as a new member in 2015, after the United Nations (UN) General Assembly had granted it the status of a ‘non-member observer state’.4 Behind the controversy over Palestine’s accession to the ICC lurks the question of Palestine’s state status,5 which in turn revolves around how states are determined in international law. While supporters of Palestine’s accession had argued for a long time that it was a state due to its legal entitlement as a self-determination unit and widespread recognition by other states,6 sceptics held that the fragmented control exercised by the Palestinian National Authority under Israeli auspices lacked, among other things, the required effectiveness and independence for Palestine to qualify as a state.7 Similar debates concern the rights and obligations – and, therefore, the status – of other contested ‘states’, from Kosovo to South Ossetia and Abkhazia and from Somaliland to Taiwan. Far from being detached from practice, the questions of what the state is and how individual states are identified inform some of the most entrenched territorial disputes in the world and promise to retain their significance in conflicts from the post-Soviet space to the Middle East. Any identification of concrete states implies some ontology of the state as an at least implicit understanding of its being. Yet while there is a wide agreement that the state is composed of the elements of territory, population and government,8 usually complemented by the capacity to enter into relations with other states,9 actually identifying The Ontological Predicament of State Creation in International Law 411 10 11 12 13 14 15 French, ‘Introduction’, in D. French (ed.), Statehood and Self-Determination in International Law (2013) 1, at 1. On the centrality and ambiguity of the state concept in modern political thought, see J. Bartelson, The Critique of the State (2001). French, supra note 10, at 1. For the production of the leg (...truncated)