This chapter brings together the threads of Chapters 8 and 9 to advance an alternative theoretical foundation for international organizations. First, it explains why we should understand the state as an artificial rather than as a natural construct, even for the purposes of international law. It traces states’ emergence back to a national community’s capacity for self-description through socially grounded rules of transformative re-description. Doing so, this chapter unveils the inherent openness of international law to admitting any other institutions that can also be traced back to this capacity. Thus, it recasts the state as just one institution among a family of such entities. All these entities, including international organizations, are equally admissible by default in international law without the need for any legislative intervention to that effect.

A central feature of the international legal system is that States are the predominant actors within the system and possess international legal personality. States are able to enter into legal relations with each other by way of treaties, possess certain international legal rights as bestowed under international law, and are capable of enforcing those legal rights in international litigation or of being the subject of a claim if they are derelict in meeting their international legal obligations. This raises two important issues. First, how are 'States' characterised and recognised under international law? Second, are States the only international actors that possess international legal personality? This chapter first consides the characteristics of statehood and the legal tests for recognition of a State. Next, the political and legal dimensions of recognition of a State are considered. This is followed by a focus on the international legal personality of non-State actors, including international organisations, individuals and transnational corporations. Finally, the related issues of peoples and their right to self-determination, and secession are considered.

The issue of international membership introduces the related issue of international rights holding. International rights holding amounts to being “in”—that is, being recognized as legitimate and, as such, as having rights. But the membership process through which a collective actor gets “in” and comes to enjoy the status of rights holder also has a selective and exclusionary character. There is an interrelated process of denial of rights holding for other collective actors. An illustration of how international membership associated with international rights holding can have this selective and excluding effect is the impact of international law on rights holding in the framework of colonialism—an impact so significant that it continues to have a legacy today. Thus, the selective character of international membership has a cost for international rights holding not simply for the societies at odds with the requirements of statehood but also for their individual members.

This chapter concentrates on the conditions of access to and the nature of membership in the international system as established by international law—specifically, three issues. The first issue is the type of society that is presented as a legitimate collective member of the international order. One of the first steps that international law takes to determine legitimacy at the international level is to identify the criteria necessary for a collective actor to be viewed as a full-fledged legitimate member of the international community. The second issue is that after World War II and the creation of the United Nations (UN), access to international membership in the international order moved toward a form of universality that has been relatively pluralistic. The third issue is that despite this movement toward a pluralistic universality, there are limits to the universality and pluralism of international membership in the international system as defined by international law.

Chapter 6 investigates the legal options to ameliorate historic approaches to race, allowing the United States to more closely align with its national ideals. Over time, different branches of government developed strategies to ameliorate the damage caused by institutionalized racism. However, courts have wrestled with the question of how these remedies might reify race – making it more central to American life – or destroy the unique aspects of communities, forged by their shared experiences fo race, in an effort to provide greater equality. The chapter asks if the law and Constitution require public institutions to be color-blind in their treatment of race, or does the racial history of the nation demand color-conscious remedies. The text traces the evolution of affirmative action, especially in education, as a means of compensating for generational exclusion and the Supreme Court’s changing perception on color blindness as a constitutional principle.. The treatment of those U.S. territories that have not been granted statehood, where the majority of the population are people of color is explored. Finally, recent expansions to Native sovereignty are examined and the reader is asked to consider the impact of such protections on Native equality.

This chapter collates the archaeological evidence presented in Part II. It begins with a reassessment of the evidence put forward to refute the historical plausibility of the United Monarchy, showing that it did not stand the test of time and that in the long run, the challenges raised failed to shake the kingdom’s foundations. The chapter then moves on to integrate the archaeological evidence into a coherent picture of the United Monarchy’s establishment, expansion, and solidification. Finally, it reviews the theoretical underpinning of the discussion, arguing that much of the debate was based on a red herring, leading to an evaluation of the United Monarchy in comparison to well-established empires such as Assyria and Rome, rather than short-lived empires, which is further developed in Chapter 14.

This chapter offers a synthetic overview of the range of international law issues that arose during the course of the Vietnam War, especially as Americans took over from the French after Dien Bien Phu in 1954 and moved towards massive escalation between 1964 and 1973. The chapter begins with the debate about what law applied to the conflict, which turned on the legal status of South Vietnam. The chapter then asks what claims were possible and plausible when it came to the legality of American intervention in the war. Next, the chapter addresses the different kinds of warfare in which the United States engaged, from its bombing campaigns over North Vietnamese territory and waters to the changing forms of its counterinsurgency in the South and, later, across the Cambodian border. Finally, the chapter concludes by examining the legal legacy of Vietnam: not only how it led to the most significant substantive development of the laws of war since the Geneva Conventions, the First and Second Additional Protocols, but also, and equally importantly, how it ensured that international law would play (for good or ill) a central role in debate over and analysis of all future conflicts.

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.