Forum 4: The State System

Chaired by Professor Armin von Bogdandy

Both war and the aftermath of war are transformative: actors change roles and gain or lose influence. What have the end of the Cold War and the ensuing period meant for the position of the state as a  subject of international law? Has its traditional centrality been undermined and, if so, how? Is the recognition of the phenomenon of ‘failed’ or ‘fragile’ states an indication of the continued relevance of the  state as the primary subject of international law? What are the implications of the Kosovo experience, especially in the light of the ICJ’s advisory opinion?

DR TARAK BARKAWI, Senior Lecturer in War Studies, University of Cambridge

Contributing as a Discussant

Biography: Tarak Barkawi is senior lecturer in war studies at the Centre of International Studies, University of Cambridge. He specialises in the study of war, armed forces and society with a focus on conflict between the West and the global South. He earned his doctorate at the University of Minnesota.

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From the national border to the national eleven: a (partial and partisan) appraisal of the states' performance since the end of the Cold War

PROFESSOR BOLDIZSÁR NAGY, Associate Professor of International Law, Eötvös Loránd University (ELTE) and Central European University (CEU)

Abstract: The contribution - concentrating on changes that occurred after 1989 - will be partial and partisan. Only some aspects of those changes will be mapped, and partisan because European, focussing on migration and citizenship and working from liberal assumptions.

The talk will address significant movements leading to the redefinition of the outer perimeter of the state, “the boundary”. It will address its gradual replacement by a set of controls partly beyond the border, partly within the territory itself. This “relocation and de-territorialisation” (A. Sachar) will be scrutinized in itself and in the context of excluding those who justifiedly seek access to a State’s territory. The deterritorialisation of the state control is accompanied by dramatic shift in the perception of the “population”. A twofold movement in the regulation of citizensip – re-ethnicisation and de-ethnicisation - seems to rearrange the basic relationship between the state and and its members. Final remarks will recall historic antecedents of these “new” phenomena and - in the year of the soccer world championship – allude to a new sort of tribalism developing.

Biography: Boldizsár Nagy read law and philosophy in Budapest and international relations in Bologna. He is associate professor at the Eötvös Loránd University and the Central European University, both in Budapest. He was counsel for Hungary in the Gabcikovo-Nagymaros Project, acted as expert for the Hungarian MFA, the Council of Europe and UNHCR. He is a founder and board member of ESIL and sits on the editorial boards of IJRL and EJML. Most of his publications deal with refugee law issues, the area of freedom, security and justice in the EU and questions of sovereignty. (For further details see: www.nagyboldizsar.hu).

Nagy - Draft ESIL Paper

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Statehood after 1989: between effectivités, legality and virtuality

PROFESSOR ANNE PETERS, Professor of International Law and Constitutional Law, University of Basel, Switzerland

Abstract:  The period since 1989 has seen both statehood at its peak, and at its low point. On the one hand, a quasi-colonial (soviet) empire dissolved, and numerous new states emerged. Moreover, secessionist movements all over the world seek to become independent states. On the other hand, the globalisation of markets and the emergence of global problems have, especially in the 1990s, led to the perception of a weakening or even decline of the nation state. Global governance, the strengthening of transnational or even supranational regimes, large scale privatisation and the rise of “non-state actors” have been both a cause and effect of this trend. The concomitant international legal discourses have been those on secession and ethno-nationalism on the one hand, and those on the transformations or disaggregation of states, on transnational networks and multilevel governance, on the other hand. The paper brings together these discourses.

Already before 1989, the facticist concept of the state as a subject of international law had been overcome, and negative conditions of legality (non-use of force and non-violation of self determination) had been added as criteria of statehood (or at least of recognition). After 1989, legality has come to play a positive role, with the idea of a remedial secession, with self determination as a legal title to statehood.

The state, as an international legal subject, of course needs a factual basis. But for the purpose of legal analysis, statehood is a legal concept, and not a “primary fact”. The post-1989 concept of “failed state” refers tot his factual side of statehood. And the post-1989 concept of “rogue states” relates to its legal side.

Effectiveness is a bridge-concept which brings together the factual and the legal side of statehood. Effectiveness means both real factual power as opposed to powerless or even virtual institutions. But effectiveness also means power (independent of the lawfulness of its exercise) as opposed to institutions satisfying standards of legality or even legitimacy.

The paper concludes that effectiveness is and should remain a necessary, but is not a sufficient criterion for statehood. Political entities which are arguably effective but not legal (e.g. Abkhazia in Georgia) should not count as states in terms of international law. But political entities which are legal but barely effective (such as Kosovo and Bosnia-Herzegovina) should probably not count as states either. However, the standards of effectiveness are a highly relative one. In the era of globalisation, no state is fully effective. If and only if the international legal rules on states continue to embody the concept of effectiveness in the sense just described, international law will perform well as a factor of order in international relations.

Biography: Anne Peters is Professor of Public International Law and Constitutional Law at the University of Basel, a position she has held since 2001. Prior to taking up the tenured post she was Assistant Professor at the Walther-Schücking-Institute of Public International Law at the Christian Albrechts University Kiel, where she obtained the Habilitation-qualification on the basis of her Habilitation-Thesis “Elemente einer Theorie der Verfassung Europas” (Elements of a Theory of the Constitution of Europe). Her research activities cover the field of general public international law, especially its constitutionalization, European constitutional law, constitutional theory and constitutional comparison and national and international human rights. She has published extensively on questions of supranational global governance and global constitutionalism.

Peters - Draft ESIL Paper

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