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


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.