Perhaps no topic is better suited to an international law conference on "confronting complexity" than the perennial question: "What makes a state?" International law casebooks teach students by example that despite the simple definition of a state in the Montevideo Convention--permanent population, defined territory, government, and capacity to enter into relations with other states--determining statehood is anything but simple. But are the casebook examples illustrations of the definition, exceptions, superficial inconsistencies with a deeper coherence, realpolitik at work, or glimpses of idealism? And does a new state exist by virtue of satisfying the Montevideo definition? Or is it recognition by existing states or membership in international organizations (which might depend on meeting additional requirements) that constitutes the new state as a state? Statehood and recognition cannot always be kept separate any more than they can always be united, and their formulations are thus inevitably intertwined.
In the 1990s and early 2000s, there was wide-ranging scholarly interest in questions of self-determination, statehood, and recognition, and in arguments that other actors ought also to have some form of international legal personality. In contrast, the trend over the past decade, as Fleur Johns puts it, is to conceive of international law less in terms of "the stagecraft of an exclusive pantheon of permanent players," and more in terms of "networks, patterns and probabilities." (1) Although the International Court of Justice's 2010 advisory opinion on the legality of Kosovo's declaration of independence (2) caused a flurry of commentary, the general question of "what makes a state" has slipped down, even off, many scholarly agendas.
In addition to the ICJ's Kosovo opinion, however, the past few years have seen the UN General Assembly's according of non-Member Observer State status to Palestine in the United Nations, the ICJ's dismissal of Georgia's case accusing Russia of ethnic cleansing in the breakaway Georgian provinces of Abkhazia and South Ossetia, (3) the creation of South Sudan following a referendum, and the recognition-of-government issues raised by the events of the Arab Spring. While Kosovo, Abkhazia, and South Ossetia date to controversies of the 1990s over whether international law recognizes some right to secede, these other cases relate to different historical periods of self-determination. In international law terms, Palestine originated in the League of Nations' interwar mandate system. South Sudan calls into question the mid-twentieth century project of self-determination as decolonization. And the recognition of resistance movements during the Arab Spring also sheds light on international law's idea of the state.
This panel, organized by Christopher Borgen (St. John's University Law School) and chaired by Karen Knop (University of Toronto Faculty of Law), sought to take stock of a simple definition in a complex world and reinvigorate thinking about "what makes a state" by bringing together a group of thinkers, some also advocates, known for their bold approaches to the question. A strong critic of the ICJ's Kosovo opinion, Professor Valerie Epps (Suffolk University Law School) sides with those who see it as a missed opportunity to formulate clear rules on secession. …