'Ships of State and Empty Vessels: Critical Reflections on ‘Territorial Status in International Law’ byAlex Green in (2024) Oxford Journal of Legal Studies comments
In his recent monograph, Territorial Status in International Law, Jure Vidmar offers ‘a new theory of statehood’ that consolidates his existing work and departs in important ways from legal orthodoxy. As a work of doctrinal law, the text is rigorous; however, its theoretical contribution is somewhat unclear. Vidmar’s central theoretical claim—that the status of individual states is established by discrete norms of customary international law—adds very little to his doctrinal argument. By examining his position, this review article examines what it might mean to provide helpful ‘theories of statehood’. It begins by framing the theoretical challenge posed by such work before setting out some desiderata for theoretical success in this area. Finally, it sketches out a general approach, grounded in Hannah Arendt’s conception of power, which offers a promising means for moving beyond doctrinal description within ‘reconstructive’ international legal theory.
States are among the most powerful subjects of international law, not only in terms of their economic, military, political and social capacities, but also insofar as that legal order characteristically grants them a broad range of important immunities, liberties, powers and rights. These include, for example, the right to political independence, permanent sovereignty over natural resources and immunity from compulsory jurisdiction before international courts and tribunals. Moreover, for those who consider states to be necessarily territorial entities, their existence is intertwined with the presence of legally delineated physical spaces, in terms of which that existence must be identified and explained. Despite the centrality of both statehood and territory within doctrinal law, questions concerning their nature are some of the more complex and controversial within international legal theory. In his new book, Territorial Status in International Law, Jure Vidmar grapples with this complexity, seeking ‘a new theory of statehood’ by conducting an international legal analysis of territory in general.
Vidmar makes this offering within an increasingly crowded field. There is a huge quantity of doctrinal and theoretical work on both statehood and territory, encompassing legal scholarship, political philosophy and the history of international relations, as well as interdisciplinary contributions across these fields. Given this, it is somewhat odd that Vidmar claims there to be a ‘paucity’ of scholarship on the legal nature of statehood. There are nonetheless a great many things to recommend his new monograph, which mirrors the meticulous doctrinal analysis of his earlier book, Democratic Statehood in International Law. It is refreshing to see mainstream legal work which critiques some distinctions between state and some non-state entities, as well as to see an analysis of statehood that goes well beyond the archetypal citation of article 1 of the 1933 Montevideo Convention on the Rights and Duties of States (‘the statehood criteria’, to use Vidmar’s phrase). Vidmar also gives detailed attention to the territorial and statehood-related elements of several contemporary and controversial international conflicts, such as that between the State of Palestine and the State of Israel, as well as between the Russian Federation and Ukraine.
Notwithstanding the outstanding quality of this work, I disagree with Vidmar’s doctrinal analysis on a number of points. He alleges, for example, that several entities, including the Republic of Kosovo, Palestine and the Republic of Somaliland, do not possess statehood: on this we differ. Similarly, he disagrees with both Rowan Nicholson and myself about whether ‘effectiveness’ provides a basis for state creation—an orthodoxy that Vidmar completely denies. My focus in this review article, however, is not the detail and controversy of these doctrinal views, but rather the theoretical approach that Vidmar takes when seeking to elucidate them. In particular, what interests me is the question of what it means to provide a ‘theory of statehood’ and in particular what desiderata for success such a theoretical exercise might assume. At bottom, and despite his claims to have done so, I remain sceptical that Vidmar provides us with anything like a theory of statehood with Territorial Status in International Law, although that text does perform valuable work in clarifying several points about the legal concept of territory.
To advance my argument, I begin by outlining three sets of questions one may wish to ask about states (section 2), before considering what desiderata a genuine theory of statehood would have to satisfy in order to qualify as a successful legal-theoretical contribution (section 3). Throughout both discussions, I highlight important contributions that Vidmar makes towards our understandings of both, as well as pointing out places in which his reasoning and conclusions fall short of the ideal. Having completed this task, I then sketch a theoretical approach to legal statehood that might satisfy the desiderata I identify (section 4). Although necessarily provisional, this sketch illustrates how an interrogation of statehood that employs non-positivist ‘rational reconstruction’ might yield more theoretically promising results than ‘black letter’ doctrinal analysis alone.
