(PDF) The State

The State TOM SPARKS* Forthcoming in Jean d’Aspremont and Sahib Singh (eds.), Concepts for International Law: Contributions to Disciplinary Thought (Edward Elgar Press, expected 2018). Introduction The State is omnipresent in international law discourse. Both directly and through the multitude of concepts which explicitly or implicitly reference it, the concept of the State is almost constantly employed by international lawyers in scholarship and practice. States are the international community’s law-makers and law-enforcers; they exercise the community’s curial function, either in their own capacity or through delegation to individuals; and they are the system’s primary subjects. To use Knop’s phrase, despite the growth of importance of individuals and other actors on the international scene in the years since the Second World War,1 ‘the State continues to be the only actor in international law that really matters, that is, the actor that plays the decisive role in making, interpreting, and enforcing international law.’2 The concept of State is implicated in the daily tools of the international lawyer; in treaty, principle and judgment, in the idea of State mind which stands behind international custom, and even in the idea of an “inter-national” law itself.3 Perhaps it is this very ubiquity which contributes to the uncertainties which beset the idea. Although every student of international law can recite the Montevideo definition of the State – that a State is a political community, territorially organised, that has the capacity to act internationally,4 and although * My thanks go to the Editors for their many helpful comments. All remaining mistakes, infelicities and omissions are mine alone. The research leading to this chapter has received funding from the European Research Council under the European Union's Seventh Framework Programme (FP/2007-2013) – ERC Grant Agreement n. 312304. 1 For an excellent account of this process of change see Anne Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (Jonathan Huston tr, Cambridge University Press 2016). 2 Karen Knop, ‘Re/Statements: Feminism and State Sovereignty in International Law’ (1993) 3 Transnational and Contemporary Problems 293, 297. 3 Alf Ross, A Textbook of International Law: General Part (Longmans, Green and Co 1947) 12. 4 Montevideo Convention on the Rights and Duties of States, signed 26 December 1933, in force 26 December 1934, Article 1(a-d). the concept continues to generate a vast and rich scholarship, both the concrete identification of instances and the exploration of the State’s abstract nature seem to defy satisfactory resolution.5 The concept of State is, perhaps surprisingly, relatively young. Although the term “State” has had the meaning of nation, realm or commonwealth in the English language since at least the fifteenth century,6 its technical usage—that is to say, what international lawyers use the term to mean—has changed significantly in the intervening years. Indeed, the term “State” describes, defines and moulds a number of entities which are much older than the concept itself.7 The story of States is a story of false permanence. Despite the myth of the everlasting, immortal nation—the proverbial “empire which will last a thousand years”—history is a procession of national births and deaths, of the rise of empires and their ruinous fall.8 But more significant, perhaps, than change in the membership of the international community, the idea of “State” has undergone even more dramatic changes. From its origins in the Hobbesian tribe or war-band, one may trace the development of the “State” through monarchy and feudalism, through the emergence of the Rechtsstaat (the State governed by law) and to the idea of the State under law, to the era of permanence characterised by the idea uti possidetis juris.9 In the modern era this development has 5 See, among a great many others, James Crawford, The Creation of States in International Law (2nd edn, Clarendon Press 2006); Jean d’Aspremont, ‘The International Law of Statehood: Craftsmanship for the Elucidation and Regulation of Births and Deaths in the International Society’ (2014) 29 Connecticut Journal of International Law 201; Jorri Duursma, Fragmentation and the International Relations of Micro-States: Self-Determination and Statehood (Cambridge University Press 1996); Thomas D Grant, ‘Defining Statehood: The Montevideo Convention and Its Discontents’ (1998–99) 37 Colombia Journal of Transnational Law 403; Gerry Simpson, ‘Something to Do with States’ in Anne Orford and Florian Hoffmann (eds), The Oxford Handbook on the Theory of International Law (2016); Milena Sterio, ‘A Grotian Moment: Changes in the Legal Theory of Statehood’ (2010–11) 39 Denver Journal of International Law and Policy 209. 6 ‘State, N.’, The Compact Edition of the Oxford English Dictionary (Book Club Associates 1979) vol 2, 3025. For a fascinating and very revealing history of the closely-connected tern “nation” see Eric J Hobsbawm, Nations and Nationalism Since 1780: Programme, Myth, Reality (Cambridge University Press 1990) 14–45. 7 As Ryan reminds us, the concept of “state” was virtually absent in medieval discourse, although there existed at that time entities which, albeit very different from States as conceived today, we would know by that term. See: Magnus Ryan, ‘Freedom, Law, and the Medieval State’ in Quentin Skinner and Bo Stråth (eds), States and Citizens: History, Theory, Prospects (Cambridge University Press 2003) 51 et seq. 8 See, e.g. Eric J Hobsbawm, The Age of Revolution: Europe 1789-1848 (Weidenfeld and Nicholson 1962); The Age of Empire 1875-1914 (Pantheon Books 1987). 9 It should be noted that this is not necessarily, and perhaps has never been, a linear progression, nor one which has been followed at the same speed everywhere. Parts of this history are told variously in Quentin Skinner, ‘A Genealogy of the Modern State’ (2009) 162 Proceedings of the British Academy 325; Thomas Alfred Walker, A History of the Law of Nations (Cambridge University Press 1899) 30–148; Quentin Skinner, The Foundations of Modern Political Thought: The Age of Reformation (Cambridge University Press 1978) vol 2, 349–58; Neil MacCormick, Questioning Sovereignty: Law, State and Nation in the European Commonwealth (Oxford University Press 1999); Ryan (n 7); Martin van Gelderen, ‘The State and Its Rivals in Early-Modern Europe’ in Quentin Skinner and Bo Stråth (eds), States and Citizens: History, Theory, Prospects (Cambridge University Press 2003); Raja Prokhovnik, Sovereignty: History and Theory (Imprint Academic 2008) 13–25; Jörg Fisch, ‘Peoples and Nations’ in Anne Peters and Bardo Fassbender (eds), The Oxford Handbook of the History of International Law (Oxford University Press 2012); Antonio Cassese, ‘States: Rise and Decline of the Primary Subjects of the International Community’ in Anne Peters and Bardo Fassbender (eds), The Oxford Handbook of the History of International Law (Oxford University Press 2012). continued unabated, and it is at least arguable that we have now entered the era of the post-sovereign State.10 Change of this type is not incidental to the description or understanding of States; rather, it is a central feature of what States are. States, to adapt Giddens, are ‘like buildings that are at every moment being reconstructed by the very bricks that compose them’,11 and the analogy indeed seems apposite. States are not innate or physical truths, but rather are recursively created by human social action and interaction.12 It is perhaps for this reason that the concept of the State sits somewhat uncomfortably with law. The similarities are notable: like States, law is a social phenomenon, and is created by human action. Like States, individual laws come and go, and the idea of “law” has itself been subject to significant change over time. Nevertheless, legal concepts exist in a conceit of timelessness, seeking to encapsulate a “truth” by which the rest of the system may orient itself. A legal definition of the State is an attempt permanently to capture an impermanence. Whatever the difficulties of defining or identifying States, the concept is vitally important for contemporary international law and international lawyers, serving a number of structural functions which enable and constrain13 the modern system and its discourses. Three are of particular significance, and will be discussed here. First, the concept personifies; aggregating the individuals and institutions within a given territory into a semi-fictional agent capable of acting on the international plane (creation of a legal person). Secondly, it delineates, in the sense of creating an authority-space within which a community will have plenary competence for the regulation of its social and political life (creation of a territory). Thirdly, it identifies, both in terms of location and person, for the purposes of the idea of international responsibility (understanding which person acted). This chapter will briefly consider each of these functions. I Personification To the modern international lawyer—and, indeed, to all international lawyers since at least the early 20th century14—the idea of “State” has carried with it the idea of personality.15 Portmann notes that there is ‘almost universal agreement that states are international persons’, but that the status of various 10 See e.g. Neil MacCormick, ‘Beyond the Sovereign State’ (1993) 56 Modern Law Review 1; MacCormick (n 9). 11 Anthony Giddens, Sociology (2nd edn, Polity Press 1993) 18. Giddens’ observations are made in the context of an inquiry into the nature of society, rather than “the State”. For this reason the vocabulary used does not comfortably transfer. Giddens refers to societies as structures, using the term “state” to refer to the governmental organs of the society, which he contrasts with “civil society”. See further: Anthony Giddens, The Nation-State and Violence (University of California Press 1985) 20. 12 Anthony Giddens, The Constitution of Society: Outline of the Theory of Structuration (Polity Press 1984) 2. 13 This vocabulary is Giddens’: ibid 25. 14 Stephen C Neff, ‘A Short History of International Law’ in Malcom D Evans (ed), International Law (4th edn, Oxford University Press 2014) 13–15. 15 For more on the concept of personality see Catherine Brölmann and Janne Nijman, ‘Legal Personality as a Fundamental Concept of International Law’ elsewhere in this volume. other entities—such as individuals, NGOs, armed groups and corporations—remains ‘unresolved’.16 In the same vein, Shaw says that ‘states remain by far the most important legal persons’ in international law,17 while Cassese describes States as ‘the backbone of the community’, and notes that they ‘possess full legal capacity, that is, the ability to be vested with rights, powers, and obligations.’18 Indeed, it was historically assumed that States alone were persons under international law,19 and although the growth of international organisations and the recognition of international rights of corporations, individuals and minorities (among others) has largely disabused international lawyers of this oversimplification,20 it remains common to see references to States as the “full”, “primary”, or “plenary” persons of international law.21 Although it is now accepted that not all persons are States, the presumption that all States are persons still, by and large, holds good. At its simplest, Personhood refers to a capacity to act in legally relevant ways.22 It is not primarily a substantive bundle of rights and obligations, but rather an anthropomorphisation:23 a metaphor drawn from domestic legal systems which draws a rough equivalence between the various kinds of international “persons” and the position of individuals within domestic legal orders.24 The personhood idea utilised by contemporary international law treats States as if they exhibit some individual-like qualities – minimally, their ability within a legal system to be treated as unitary, to be treated as capable of making a claim on their own behalf, and to be treated as engaging through their actions their own responsibility. In the case of individuals in a domestic setting it is clear why this should be so, but the situation is somewhat more complex when it comes to composite “persons” such as States. Why is it that such constructs should be treated as individual actors? Lauterpacht argued that to do so is only ever a fictional account: ‘states are composed of individual human beings; […] behind the mystical, impersonal, and therefore necessarily irresponsible personality of the 16 Roland Portmann, Legal Personality in International Law (Cambridge University Press 2010) 1; see also James Crawford, Brownlie’s Principles of Public International Law (8th edn, Oxford University Press 2012) 115; Andrea Bianchi, ‘Looking Ahead: International Law’s Main Challenges’ in David Armstrong (ed), Routledge Handbook of International Law (Routledge 2009) 393–95. 17 Malcolm Shaw, International Law (7th edn, Cambridge University Press 2014) 143. 18 Antonio Cassese, International Law (2nd edn, Oxford University Press 2005) 71. [Emphasis omitted]. 19 Jan Klabbers, International Law (Cambridge University Press 2013) 67; Cassese (n 18) 71–72; Janne Elisabeth Nijman, The Concept of International Legal Personality: An Inquiry into the History and Theory of International Law (TMC Asser Press 2004) 7. 20 Bianchi describes it as a ‘principle of classical international law’ that is now ‘obsolete’: Andrea Bianchi, ‘State Responsibility and Criminal Liability of Individuals’ in Antonio Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford University Press 2009) 17; see also Aoife O’Donoghue, ‘International Constitutionalism and the State’ (2013) 11 International Journal of Constitutional Law 1021. 21 See, e.g. Martin Dixon, Textbook on International Law (7th edn, Oxford University Press 2013) 116; Yaël Ronen, ‘Entities that Can Be States but Do Not Claim to Be’ in Duncan French (ed), Statehood and Self-Determination: Reconciling Tradition and Modernity in International Law (Cambridge University Press 2013) 23; Cassese (n 17) 71–72. 22 Brölmann and Nijman (n 15). 23 ibid. 24 Peters (n 1) 35–36. metaphysical state there are the actual subjects of rights and duties, namely, individual human beings.’25 Mysticism the collective personality of the State may be, but it is not for that reason unreal. Although there is not, within a given area, any person, institution or object called “State” that can be identified as the locus of its existence,26 the State has an objective existence, albeit one that is dependent on its cognitive existence. States are an example of Searle’s observer dependent features, social facts which exist because individuals act in their social relations as if they exist. A feature is observer dependent if its very existence depends on the attitudes, thoughts, and intentionality of observers, users, creators, designers, buyers, sellers, and conscious intentional agents generally. Otherwise it is observer or intentionality independent. Examples of observer- dependent features include money, property, marriage, and language. Examples of observer- independent features of the world include force, mass, gravitational attraction, the chemical bond, and photosynthesis.27 In other words, groups of individuals both within and outwith the State create that social reality by acting towards one another as if it exists. More significantly, doing so is no pretence or blindness: they are correct to do so. They are motivated to do so because they are able to observe the reality of the social structures called “State”, and they create the same social structures by acting in accordance with them.28 The culmination of these reflections is the observation that States are human creations. Somewhat obvious though this must appear, the socially and historically contingent nature of States tends to be obscured by their ubiquitous presence and vast action-power, and its repetition is therefore warranted. The concept of “State” provides a locus for the constructed personality of a coherent social and political community, and it is the foundation upon which the system of international relations that we know today entirely depends. The concept rationalises communities of shifting identity and composition into longitudinal, impersonal, totalising State agents, capable of bearing a more-or-less stable set of rights and obligations for the purposes of a system of law. The impermanence of human timescales is subsumed within an outwardly stable construct: people come and go, but the State endures. 25 Hersch Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) 23 British Yearbook of International Law 1, 27. [Original emphasis; footnotes omitted]. See also discussion in Knop (n 2) 319–323 et seq; Ngaire Naffine, Law’s Meaning of Life: Philosophy, Religion, Darwin and the Legal Person (Hart Publishing 2009) 178–79. 26 Ross (n 3) 31; see also David Runciman, Pluralism and the Personality of the State (Cambridge University Press 1997) 16 et seq. 27 John Searle, ‘Social Ontology and Political Power’ in Frederick F Schmitt (ed), Socializing Metaphysics: The Nature of Social Reality (Rowman & Littlefield Publishers inc 2003) 196. 28 Giddens, The Constitution of Society: Outline of the Theory of Structuration (n 12) 2. II Delineation If the State’s connection to the concept of personality is a vital structuring influence on the international legal system, no less significant is its intimate link to the concepts of territory, authority29 and sovereignty30 which, taken together, serve a delineative function. That the State is a territorial entity is reflected in many of its most significant definitions, and in particular those formulated at the end of the 19th and in the early 20th centuries. As noted above, the 1933 Montevideo account of the State refers to a population possessed of a government and located within a discrete territory,31 and in so doing it reflected a growing emphasis on territoriality in the theory of the time.32 At much the same time the Arbitral Tribunal in Deutsche Continental Gas- Gesellschaft made the finding that a State ‘does not exist unless it fulfills [sic.] the conditions of possessing a territory, a people inhabiting that territory, and a public power that is exercised over the people and the territory.’33 Although the explicit focus on territory as one element of the Jellinekian Drei-Elementen-Lehre principally dates from the late 19th century, in truth the understanding that “the Nation”, “the Commonwealth”, “the Kingdom” (terms which, though perhaps not identical to it, overlap significantly with the modern concept of “State”) is a political community organised territorially is a much older idea. The implicit assumption that civil power is territorially delineated can be seen in the writings of Bodin in the 1570s,34 and Grotius in the 1620s,35 and the interrelationship is discussed by Pufendorf in his De jure naturæ et gentium, libri octo.36 For Pufendorf, a State is defined as ‘a moral Entity fram’d and taken up on account of the Analogy it bears to a Space.’37 Although he defines a State as a spatial entity, however, he recognises a vital agency element to the idea of the State that differentiates it from a pure space: Yet there is indeed this Difference between State and Space, that the latter is a kind of immoveable Substance, extended primarily, and of it self, and which might still subsist, if all the natural Things, which now fill it, were remov’d: But States (and all other moral Beings, consider’d formally as such) obtain no higher Condition than that of Modes or 29 For more on the concept of authority see Başak Çali, ‘Authority’ elsewhere in this volume. 30 For more on the concept of sovereignty see Guglielmo Veridame, ‘Sovereignty’ elsewhere in this volume. 31 Montevideo Convention (n 4) Article 1. 32 See e.g. Georg Jellinek, Allgemeine Staatslehre (Third Edition, O Häring 1914) 396 et seq; William Edward Hall, A Treatise on International Law (3rd edn, Clarendon Press 1890) 18–19; Georges Scelle, Précis de droit des gens: principes et systématique (Librairie du recueil sirey (société anonyme) 1932) vol 1, 74. For a discussion of the development of the emphasis on territoriality see Grant (n 5) 416–18. 33 Deutsche Continental Gas-Gesellschaft v Polish State, 5 Ann. Dig. I.L.C. 11 (Germano-Polish Mixed Arbitral Tribunal, 1929). 34 Jean Bodin, Six Books of the Commonwealth (Tooley (tr), Basil Blackwell 1967). 35 Hugo Grotius, The Rights of War and Peace (Richard Tuck tr, Liberty Fund 2005). 36 Samuel Pufendorf, De jure naturae et gentium libri octo (4th edn, Printed for J Walthoe, R Wilkin and others 1729). 37 ibid, Book I, Chapter I, §VI. [Emphasis omitted]. Attributes; so that taking away the Persons suppos’d to be in such a State it self is in manifest Danger of losing its own Existence. 38 Raič, writing in the 21st century, makes a similar point: Standing on the moon, watching the earth from a different perspective, one sees water and land, and, if one would take a closer look, one might see mountains, rivers, forests and deserts. If one would get even closer to the surface of the earth, one would be able to distinguish cities, lakes and roads. One would, however, search in vain if one would wish to identify a “State”. The reason is obvious: the State is primarily a legal concept, created by man for certain purposes. 39 The observation is significant. Territory is not an objective, ostensive reference; States are not a “thing” which it would be possible to see were one to look from the correct vantage point, in the right light, or using the right kind of lens. Rather, the physical existence of a State is a confluence between ostensive space and an observer-dependent authority-sphere called territoriality. Like State personality, the idea of territory comes into being in distinction to space as a result of the beliefs and attitudes of agents. The concept of State facilitates the delineation of the land surface of the earth into territories – authority-spaces which pertain to the communities and governance systems which inhabit them. In modern international law it serves as the lens for understanding relative claims to control over space for the purpose of the exercise of internal sovereignty; the independence and extensive liberty of internal action to which each self-determining political community is entitled, such that it is able to exercise its own discretion and choice as to the forms and structures of socio-political organisation that pertain to it. In order that national aspirations may be realised, then, it is necessary that international law have the capacity to exclude as illegitimate the exercise of control by States of areas beyond their own territories. And that constraint on the exercise of extraterritorial power has a second, concomitant, effect, promoting the stability of the entire international system. As Veridame observes, ‘[i]f every state asserted sovereign authority over the entire globe, there would be international lawlessness rather than international law’.40 Delimitation, then, is a necessary structural function in any multi-polar system of international intercourse and governance. In the international legal system as we know it, that function is served by territorial organisation of socio-political authority, but it is intriguing to consider that geographical boundedness is merely one possible method of delimitation, and not a necessary or transcendental aspect of an inter-community legal order. Non-territorial organisations of political authority have, in a world structured along geographical lines, more than a whiff of science fiction about them, 41 but it should be recalled that it is delimitation, and not any particular method of achieving it, that is primary. The fact that our world is delimited into sovereignties—and that this delimitation is territorial—that is 38 ibid. [Original emphasis]. 39 David Raič, Statehood and the Law of Self-Determination (Kluwer Law International 2002) 1. 40 Veridame (n 30). 41 A particularly intriguing, if somewhat dystopian, vision of overlapping sovereignties can be found in China Miéville’s novel, The City & the City (Pan Books 2009). incumbent in the concept of the State is a vital structuring factor in the international legal system, and one without which the system we know could not exist. III Identification It is one of the basic tenets of most accounts of law that legal systems must, in order to function as such, be able to identify their subjects. That proposition can be seen, if implicitly, in Austin’s characterisation of law as sovereign command,42 Kelsen’s definition of law as a ‘social technique’,43 Raz’s law as ‘an aspect of a political system’,44 Hart’s use of the internal perspective of law,45 and must surely be an aspect of Fuller’s first desideratum, under which he argues that a failure to create rules that are generalisable is a failure ‘to achieve rules at all’.46 Such statements could be multiplied almost at will. One aspect of the identification of subjects necessary for legal systems to function—that the system is able to determine to whom the obligations of the system apply—has been discussed above as an aspect of personification (Section I). It is necessary, however, to further develop that theme to consider another aspect of identification in the specialised context of composite persons: that of the identification of which natural or legal person is to be regarded as the “actor” or the “author” of an action for the purposes of responsibility. In turn, that heading can be subdivided into two aspects. The first of these is an identification of a sphere of authority for the purposes of that bundle of rights and responsibilities called jurisdiction,47 and is a corollary of delimitation (Section II). The second, the subject of this section, is a personal identification which may be termed attribution. States, as Crawford and Watkins remind us, ‘lacking bodies of their own, can only act through the agency of others—in the end, of natural persons.’48 Hägerström makes a similar observation: When it is said that the state builds railways, runs the postal system, organizes an army, etc., the reality which lies behind the statement is merely the following. Certain persons or complexes composed of persons, empowered by the system of rules in force to exercise the supreme power of regulation within the group in question, e.g., “sovereign organs,” issue declarations, in accordance with certain formalities laid down by the rules, having a certain ideal content concerning the building or railways, etc. […] They are actualized by 42 John Austin, The Province of Jurisprudence Determined (John Murray 1832), esp. 18. 43 Hans Kelsen, General Theory of Law and the State (Anders Wedberg tr, Lawbook Exchange 1999) 19. 44 Joseph Raz, The Concept of a Legal System (2nd edn, Clarendon Press 1980) 211. 45 HLA Hart, The Concept of Law (Joseph Raz and Penelope A Bulloch eds, 2nd edn, Clarendon Press 1994) 79–99, esp. 88- 91. 46 Lon Fuller, The Morality of Law (Yale University Press 1969) 39. 47 For more on the concept of jurisdiction see Cedric Ryngaert, ‘Jurisdiction’ elsewhere in this volume. 48 James Crawford and Jeremy Watkins, ‘International Responsibility’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (Oxford University Press 2010) 287. being applied to the persons appointed for that end, in consequence of the forces which maintain the system of rules as a whole. 49 There is, in the opinion of the present author, a significant element to action by collective entities which cannot be explained merely as the sum of the aggregated actions of the individuals who comprise them or act for them.50 Nevertheless, it is incontrovertible that all physical effects in the phenomenal world depend at their root on the ‘basic actions’ of individual agents.51 That holds true whether the action is one that has an innate significance but which acquires an additional quality as a result of attribution to a State (an example might be the firing of a gun by a member of a State’s armed forces, or the arrest of a suspect by a police officer), or one which, absent the State, has little meaning of its own (such as a plenipotentiary’s act of signing a treaty). The additional significance the basic action of the individual receives in these instances are examples of what could be termed positive attribution, or the ascription of a particular action to the collective in addition to the individual, such that the act is conceived as an act of the State. Positive attribution is a vital element of the international legal system as we know it, giving meaning to the concept of the State as legal person in every area of a State’s international life, from the formation of obligations, to the pursuance of international adjudication, to the concept of State responsibility.52 Of equal importance, though, is what could be termed negative attribution, or the concurrent ascription to the State of authorship. In other words, the attribution to the composite personality of the State of beliefs and opinions, of statements and decisions, and of commands and instructions. Ross gives a strong statement of the basic problématique: The legal rules express themselves as if [composite] persons existed, but actually they do not. [… O]nly individuals have wills. It has never been possible to prove the existence of a collective brain or other collective organs. If several people join in a group no new supreme individual comes into existence.53 Ross is clearly correct to say that no State mind analogous to that of an individual exists. Although some accounts of action theory do suggest the existence of a collective facility to make decisions, hold opinions or formulate intentions, it is usually understood as a schematic mind rather than a human-like dureé consciousness.54. Nevertheless, rather than seeking to pierce the veil—to look behind the construct to find the “true” author of its actions, or the “real” originator of its thoughts— we instead employ the idea of State as the “person” which causes armies to march, instructs agents 49 Axel Hägerström, Inquiries into the Nature of Law and Morals (Karl Olivercrona ed, CD Broad tr, Almqvist & Wiksell 1953) 38. [Original emphasis]. 50 For an elegant proof of this proposition see Frederick F Schmitt, ‘Joint Action: From Individualism to Supraindividualism’ in Frederick F Schmitt (ed), Socializing Metaphysics: The Nature of Social Reality (Rowman & Littlefield Publishers inc 2003), esp. 147-150; and further Philip Pettit, A Theory of Freedom: From the Psychology to the Politics of Agency (Polity Press 2001) esp. 107-115. 51 The term “basic actions” is Danto’s: Arthur C Danto, ‘Basic Actions’ (1965) 2 American Philosophical Quarterly 141. 52 For more on the concept of responsibility see André Nollkaemper, ‘Responsibility’ elsewhere in this volume. 53 Ross (n 3) 31. 54 There is a lively debate surrounding collective consciousness in the literature. See, for example, on one hand Philip Pettit, ‘Groups with Minds of Their Own’ in Frederick F Schmitt (ed), Socializing Metaphysics: The Nature of Social Reality (Rowman & Littlefield Publishers inc 2003); and Schmitt (n 50); and contrast with David Copp, ‘Collective Actions and Secondary Actions’ (1979) 16 American Philosophical Quarterly 177; and Danto (n 51). before international courts, makes declarations, and generates opinio iuris.55 So strong is the presumption of separation in identity between “the State” and the individuals who at any given time act for it, in fact, that the mind of the State (and its parcel of legal opinions and obligations) will be understood to survive changes in government, and even changes in governmental system. 56 Final Thoughts The international legal system we know is made possible by the structural functions of the concept of State, three of which—personification, delineation and identification—have been discussed here. Such concepts enable and constrain the system of which they are part;57 facilitating its discourses and its practices, and at the same time defining the limits of its reality. Through the concept of State, international law and international lawyers rationalise communities into entities with a stable personality, delineate the authority-spaces which pertain to socio-political centres, and attribute thought and action to composite State minds capable of being made subjects of law. The concept is the lens through which these social situations are rendered “thinkable”.58 At its most basic, then, the concept of State is a cognitive device that is employed in order to facilitate the processes which, as a result of collective choice and historical contingency, the international legal system as currently constructed demands. As Unger notes, [I]nstitutional structures and […] ideological structures are a kind of frozen politics; they arise as the result of the temporary interruption or the relative containment of practical and visionary strife over the terms of our access to one another. And then they appear to is as though they were things – as if they were a fate rather than what they really are which is our own creations naturalised.59 Yet there are ways in which social facts like the concept of State act as “things”, defined with Durkheim as something which has an objective existence. For Durkheim ‘[t]he most important feature of a “thing” is that it is not plastic to the will: a chair moves if it is pushed, but its resistance demonstrates that it exists to whoever is doing the pushing. The same is true of social facts, even if these are not visible in that way that a physical object like a chair is.’60 The reconciliation of these observations lies in what Giddens describes as the duality of structure. ‘[T]he structural properties of social systems’, he says, ‘are both medium and outcome of the practices they recursively organize’:61 55 Although international criminal law has to some extent altered this landscape, the responsibility of individuals under ICL is still conceived as additional to State responsibility, and not as an alternative to it. See, e.g. Robert Cryer and others, An Introduction to International Criminal Law and Procedure (Third Edition, Cambridge University Press 2014) 16–17. 56 Crawford (n 5) 678–80. 57 Giddens, The Constitution of Society: Outline of the Theory of Structuration (n 12) 25. 58 This formulation is borrowed from Pomian’s observation in relation to the study of history that ‘[l]es périodisations servent à rendre les faits pensables’: Krzysztof Pomian, L’ordre Du Temps (Éditions Gallimard 1984) 162. 59 Nigel Warburton, Interview with Roberto Mangabeira Unger, ‘Roberto Mangaberia Unger on What is Wrong with the Social Sciences Today - SocialScienceBites’ (January 2014). [Emphasis in original]. 60 Anthony Giddens, Durkheim (Fontana Press 1978) 35. [My emphasis.] 61 Giddens, The Constitution of Society: Outline of the Theory of Structuration (n 12) 25. Human social activities, like some self-reproducing items in nature, are recursive. That is to say, they are not brought into being by social actors but continually recreated by them via the very means whereby they express themselves as actors. In and through their activities agents reproduce the conditions that make these activities possible. 62 Although, then, States are observer dependent features of the world—institutions whose physical existence is dependent upon their cognitive existence—to describe them as constructed entities is not to deny their intra-societal reality, nor to seek to swear away their action-power.63 Still less is it to imply that most actors in the relevant society—whether it be a national or an international society— are conscious of the acts of creation and maintenance that they perform on a daily basis, that they desire or intend the consequences of those actions, or that States are thereby “willed” or “intended” by the actors who create and maintain them. Generally, they are not. The constitutive actions which create and maintain them are recursive: merely by acting within the social reality in which individuals find themselves they sustain that reality. Nevertheless, they must, as Unger puts it, be understood as ‘made and imagined rather than as merely given in a self-generating process that would unfold independently of the will and the imagination’.64 [T]o the extent that we deny the contingency of the arrangements and deny as well our ability to change the quality or character of the structure, as well as its content, we misrepresent it, and then we produce superstition in the service of servility. 65 The functions of the concept of State in the modern international legal system are many and vital, but are neither unchanging nor necessary in the sense of transcendentally mandated. Rather they are the expressions of iterative choices, recursive ‘modes of structuring’,66 and historical contingency, and will continue to evolve with the shifting needs of the international community. International lawyers, as one of the groups most actively engaging with States and statehood on the international plane, are central to that process. Dependent as they are on the beliefs, expectations and attitudes of those who observe them, social facts are constituted moment by moment in line with those expectations, and it follows that whether as practitioners, commentators, theorists or teachers, what international lawyers think States are matters.67 Except, perhaps, insofar as we think of them as unchanging. 62 ibid 2. [Emphasis in original]. 63 Searle (n 27). 64 Roberto Mangabeira Unger, ‘The Critical Legal Studies Movement’ (1983) 96 Harvard Law Review 561, 665. 65 Unger interview (n 59). 66 Giddens, The Constitution of Society: Outline of the Theory of Structuration (n 12) 17. 67 Searle (n 27) 196; Giddens, The Constitution of Society: Outline of the Theory of Structuration (n 12) 2 et seq.