Anyone who has ever witnessed Alex Green and me engaging at a conference will know that we disagree—a lot. Our disagreements are not about nuance or details, but about first principles—namely, the role of morality as a guiding principle of legality. These disagreements are lively and respectful, and engaged in within the spirit of collegial kindness, but in the end remain unresolved. So, it is in this spirit of lively, respectful and kind disagreement that I joyfully picked up Green’s book on the emergence of new States in international law to explore his position around how statehood should be understood through a lens of moral philosophy and political ethics regarding how we ought to live in community with one another (6).
From the outset I would liken Green’s writing to that of the former Chief Justice of the High Court of Australia, Susan Kiefel. Stylistically, the prose is crisp and clear, straddling the line between accessibility and density—Green’s work is easy to read; however, he packs so much meaning and detail into every sentence that at times I had to put the book down to process everything I had read. Also, much like former Chief Justice Kiefel, if you accept Green’s starting premise, everything that flows as an argument from that starting point is flawlessly constructed and immaculately put together. I usually do not accept Green’s, or Kiefel’s, starting points; however, in this instance I will put my disagreement about the nature of law and morality into the category of something upon which reasonable people can reasonably disagree. This is easy to do because Green makes it clear from the outset that he is making an argument about what ought to be, rather than what necessarily is. He also makes it clear that he reaches this starting point from his position of being a straight white man (41), thus implicitly acknowledging that he does not carry the history of morality being used to justify the weaponisation of law against his existence.
The heavy lifting of this book is done in the first two chapters, where Green outlines the theoretical foundation of moral and ethical obligations that underpins his analysis of statehood emergence. Chapter 3 then moves on to consider how the antecedents of statehood, roughly mapped against the Montevideo Convention on the Rights and Duties of States, ought to be applied given his foundational framework of moral and ethical obligation. Chapter 4 examines the procedural framework and principles for acknowledging statehood upon the emergence of new States. Chapters 5 to 7 concern themselves with the immediate and obvious criticisms that Green perceives concerning his framework: namely, that he pushes his framework far beyond how the law ought be interpreted and applied (Chapter 5), or that he does not push his framework far enough when questioning State legitimacy and the requirement of democracy in international law (Chapters 6 and 7). Chapters 5 to 7, while important for the book, will not be the focus of the rest of the review as they do less work to establish Green’s argument and function more as a pre-emptive apologia for those who he knows would disagree with him.
In Chapter 1, Green outlines what he sees as the moral and ethical obligations of living in community. He begins by arguing that ‘ethics’ means a life ‘lived well’ (19). Green argues that this is an objective character entirely separate from subjective assessments, grounded in Dworkin’s notion that all lives have intrinsic value (20). Putting aside my scepticism around claims to objective morality for the purpose of engaging with Green’s work on the terms that Green sets out, Green argues that at its core ‘the life lived well’ demands a commitment to live authentically, which includes in it an obligation to support as much as is possible the authentic lives of others (39–40). This demands a commitment to non-violence—(noting that non-violence does not demand pacifism), as endemic violence creates conditions where authenticity is not possible (22–25)—the commitment to equality (28) and commitments to autonomy insofar as autonomy does not interfere with the authenticity and expression of others. Interestingly, he bases his moral obligation to work for the equality and autonomy of others who are not receiving this in the community on the basis of the legal framework of unjust enrichment—namely, where you benefit from these things you have an obligation to ensure that others also benefit from them, otherwise you are being unjustly enriched by your position of privilege in society (36–37). At its core, what he is arguing is that living in community requires treating others with respect and dignity, if not with kindness. While I might not agree with how he has reached this conclusion, it is one to which I find it difficult to object.
In Chapter 2, Green moves from the individual to the collective, examining how these individual obligations to live translate into a framework of political activity and governance institutions in society. At the outset of this chapter, Green makes clear that his notion of ‘political’ does not follow the traditionally conceived ‘public/private’ dichotomy (49). His basis for rejecting this dichotomy is grounded in the example of women’s and queer rights, where he notes that the violation of the rights and equality of women and queer people usually occurs in the traditionally ‘private’ setting but is so political in nature that the idea that the private is not political becomes absurd (49). Green also notes that full equality is a utopian fantasy in the same way that absolute tyranny is a dystopian fiction (60)—highlighting that his ideas around political community sit in the middle of the spectrum between these utopian and dystopian borders. The central thesis of this chapter is that governments—and governance institutions—exist to facilitate genuine political involvement and participation from the communities by which they are constituted, and that this participation needs to be consistent with the moral and ethical obligations outlined in Chapter 1. This, in Green’s view, demands a society that maintains a civil peace, while being committed to non-violence and actions that promote and permit authentic lives. These ideals are then tempered by caveats regarding what is possible when dealing with communities the size of modern political organisations that make up States (64). It is also worth noting that, while Green puts forward arguments that preference democratic governance, he acknowledges that various forms of autocracy still satisfy his governance frameworks (while noting that tyranny is antithetical to the moral and ethical obligations he has established) (65).
Chapter 3 is where we start seeing the theoretical argument around individuality and political community coalesce into a framework for statehood. Green begins this chapter by highlighting that the meaningfulness and success of the lives of individuals are frequently dictated by the political communities in which they find themselves (70). As such, he begins his argument for statehood-creation or examining political communities against the requirements of statehood in a holistic rather than checklist manner (71)—making it functionally a taxonomy for statehood-creation. The antecedents of statehood that he identifies, as noted above, roughly map on to the statehood requirements in the Montevideo Convention. In going through the elements of statehood-creation (permanent population, relatively determinant territory, effective government and some degree of governmental independence), Green convincingly argues that all of these elements are consistent with the theoretical moral and ethical frameworks he has outlined in Chapters 1 and 2. While doing this, he also notes the limits of this framework, namely, that he is not engaging with the debate concerning territory as a right, and he is dealing with statehood-creation rather than mapping existing statehood against these antecedents (75). I was disappointed to see that his support for continuing statehood for political communities whose territories have been rendered permanently uninhabitable due to climate change was buried in a footnote; however, this support was made more explicit in the conclusion (227–29), alleviating my concerns.
Chapter 4 of the book moves from the tangible requirement taxonomy of statehood-creation to the procedural taxonomy. Again, here I argue that Green is engaging in a taxonomy without explicitly saying that this is what he is doing, by asking the reader to consider the procedural elements in a holistic manner rather than each as individual, discrete requirements. The procedural requirements that Green identifies as giving weight to a claim to emerging statehood are: the recognition principle; the referendum principle; the negative self-determination principle; the international peace principle; and the territorial integrity principle. Green examines all these principles in turn to demonstrate how political communities that broadly adhere to the moral and ethical framework as outlined in Chapters 1 and 2 will procedurally fulfil these requirements for emerging statehood, while suggesting that this is the framework we ought to use when weighing up the creation of the new State. It is a convincing argument because it works on a taxonomy framework rather than a rigid checklist of requirements. It is through these procedural requirements that Green sees the ability to reject state-creation through nefarious external interference of the political community (116–20)—again, with a very convincing argument for the adoption of his theoretical and practical frameworks.
Chapters 5 to 7 are where Green addresses what he sees as the likely criticisms of the framework for state-creation he has outlined in the first four chapters. I found these arguments convincing and well-reasoned; however, my quarrel with Green’s framework is that I saw no need to use moral philosophy to reach the outcomes at which he has arrived, and I personally would have found it stronger without the resort to grounding law in morality, for the reasons noted above. That said, if you are a scholar who thinks that there is an argument for democracy to be a customary international law requirement upon States, you may not find his arguments against this position as convincing as I did.
Setting aside my long-standing disagreement with Green over the interaction between law and morality, my one criticism of this book is that Green regularly refers to the incompatibility of tyranny with genuine political community. I agree with his position here; however, Green has done an insufficient amount of work to establish what it is he means by ‘tyranny’. He has given examples of tyrannical governments but has not significantly engaged with recent literature on tyranny in international law—specifically, Aoife O’Donoghue’s book, On Tyranny and the Global Legal Order (CUP 2021), which offers a comprehensive study on the issue.
Overall, I enjoyed this book from Green and think that it offers a strong piece of scholarship to challenge how we think about emerging statehood going forward. Eventually, I believe this will sit alongside Crawford’s The Creation of States in International Law (OUP 2007) as a reference guide for considering the issue.
