Towards an (Im)possible Polis: Legal Imagination and State Continuity
Thomas Baty once quipped that ‘[i]nternational law, it is generally agreed, has something to do with states’. By opening The Canons of International Law in this manner, Baty draws our attention to the controversial and contested nature of international law itself. Statehood functions so well in his quip because, naturally, we all know what states are. Their ubiquitous presence within our lives, their structural influence upon us, and their grand institutional structures make them an obvious foil to the elusive, largely non-coercive, and decentralised international legal order. We might not know what international law is but at least, or so the joke assumes, we all know what states are and international law has at least something to with them: clever stuff.
Clever but dead wrong. Statehood itself is deeply contested and controversial, which Baty himself even goes on to acknowledge. Elsewhere, I have argued that statehood occasions some of the most controversial questions that international lawyers face and that prevailing approaches to the subject are woefully inadequate to grapple with them. In the paper upon which this short post is based, my main focus is the law of state continuity: the principles that govern whether and when established states remain in existence through time. My complaint is that prevailing approaches to state continuity entail some rather unattractive conclusions, which proceed in large part from an overall deficit of legal imagination surrounding the state as it exists in international law.
Statehood and Sea-level Rise
To begin, a little context is in order. Small Island Developing States (SIDS) are uniquely threatened by climate change. As global warming causes sea-levels to rise, many of their low-lying and archipelagic landmasses will become either completely uninhabitable or wholly submerged. Tuvalu, for example, which is comprised mostly of atolls sitting under three meters above mean sea-level, may become uninhabitable as early as the mid-21st century. Anticipation of this has prompted a flurry of international political action by SIDS, many of whom have taken the lead in developing our global response to climate change. Set against this, unfortunately, is what I have elsewhere called the ‘austere view’ of state continuity. This view holds that no state can exist without at least some inhabitable land-based territory, such that the total loss of such territory necessitates the extinction of that state. In this sense, the austere view is an expression of the theory that, to exist, states must be ‘effective’ in the sense of maintaining a particular form of territorial governance: a form adopted within Europe (albeit not exclusively) and exported via colonialism. The austere view, in other words, is both backwards looking and parochial, locating statehood solely within its past and hegemonic manifestations.
Debate on the aptness of the austere view to address equitably the fate of SIDS faced with total submergence or uninhabitability is currently tabled before the International Law Commission, which was presented with the first Issues Paper on the question of statehood and sea-level rise last year. Reactions within the Commission itself have been mixed, with some members coming out strongly in favour of absolute continuity for ‘submerged states’ and others being set quite clearly against the notion.
Positivism and Legal Imagination
In the paper referenced above, I argue that these debates are problematically stymied by positivist modes of international legal reasoning, which are by their very nature also backwards looking. Unlike critical legal or Grotian approaches to international law, positivism is not just entrenched within our past practices but also exhausted by them. It has a radically conservative temporality, which results in an overreliance upon even the most tenuously connected instances of past practice and a resistance to imagining new possibilities, particularly as far as statehood is concerned. Sea-level rise presents a threat to state continuity that is unprecedented within recorded history. It requires, if anything, new ‘prefigurative theories’ of statehood, whereby the law of state continuity is treated not just as a set of conventional or customary rules but as a means for moral and political advancement. By contrast, the International Law Commission has spent considerable time considering the status and relevance of entities such as the Sovereign Order of Malta, which, although historically interesting, have little to teach us about the challenges posed by ‘submerged states’.
My attempts to illustrate the kind of legal imagination we could exercise in relation to statehood turns, in this instance, upon ‘weird’ (or ‘science’) fiction, rather than historical precedent. In China Miéville’s weird fiction crime procedural drama The City & The City, the action takes place within the fictional cities of Besźel and Ul Qoma, both of which occupy a ‘curl of coastline’, which we are told lies ‘somewhere at the edge of Europe’. What makes Besźel and Ul Qoma unique is their relative geographical positions. Both cities, which are also independent states, exist physically alongside, on top, and below each other, separated not by walls or gates but by a practice of legally enforced ‘unseeing’, whereby citizens of both polities are forbidden from interacting with, acknowledging, or responding to events within the ‘other’ city. They share streets, walking past each other while determinedly looking the other way. Should there be any unlawful ‘seeing’ of the ‘other’ city – or worse, illegal interaction between the two – the crime of ‘breach’ occurs. The response is immediate, with a clandestine transgovernmental agency also called ‘Breach’ swooping in to remove the culprits, who are never seen or heard from again. This bizarre social-come-jurisdictional arrangement is made plausible by Miéville through a clever combination of legal and cultural detail. We are given considerable information about both ordinary life within Besźel and Ul Qoma and experience its shared space through the world-weary eyes of Inspector Tyador Borlú, whose jaded but nonetheless dogged personality promotes immediate investment and immersion.
The City & The City is well worth reading in general, however it is particularly crucial material, or so I contend, for international lawyers concerned with questions of statehood. Neither Besźel nor Ul Qoma have ‘ordinary’ relationships with land. They are both land-based, in a sense, but are as much constituted by cultural and legal convention as they are by lines on a map. Indeed, to both the Besź and the Ul Qomans, any land wholly encompassed within the ‘other’ city cannot be inhabitable for them, since to inhabit it would be to acknowledge its existence and thereby commit the crime of breach. Moreover, if we consider the transgovernmental agency of Breach itself, whose agents work and live ‘in the interstice’ and ‘debate among many other things the question of where it is that [they] live’, we see yet another community with a tenuous connection to inhabitable land.
Even though Besźel and Ul Qoma are clearly not utopian, The City & The City is no dystopian parable either: it lacks the social degeneration and sense of hopelessness typical of such narratives. Ultimately, all this leads us to ask the following question: if we can imagine nonideal, atypical, but nonetheless possible political communities like Besźel and Ul Qoma, why not imagine states with no relationship to inhabitable land at all? If bodies like the International Law Commission wish to make genuine progress in their review(s) of sea-level rise in relation to international law, it is to this sort of question that they must address themselves.