Statehood and the State-Like in International Law - Dr Rowan Nicholson

Dr Rowan Nicholson

Rowan Nicholson joined Flinders University in 2021. In the past, he has served as co-director of the Sydney Centre for International Law at the University of Sydney; he has worked on cases before the International Court of Justice and other international forums; and he has practised in commercial litigation. He gained a PhD in Law from the University of Cambridge in 2017.

Statehood and the State-Like in International Law (Oxford University Press 2019)

Book Blurb: If the term were given its literal meaning, international law would be law between 'nations'. It is often described instead as being primarily between states. But this conceals the diversity of the nations or state-like entities that have personality in international law or that have had it historically. This book reconceptualizes statehood by positioning it within that wider family of state-like entities.

In this monograph, Rowan Nicholson contends that states themselves have diverse legal underpinnings. Practice in cases such as Somalia and broader principles indicate that international law provides not one but two alternative methods of qualifying as a state. Subject to exceptions connected with territorial integrity and peremptory norms, an entity can be a state either on the ground that it meets criteria of effectiveness or on the ground that it is recognized by all other states. Nicholson also argues that states, in the strict legal sense in which the word is used today, have never been the only state-like entities with personality in international law. Others from the past and present include imperial China in the period when it was unreceptive to Western norms; precolonial African chiefdoms; 'states-in-context', an example of which may be Palestine, which have the attributes of statehood relative to states that recognize them; and entities such as Hong Kong.

What made you write on this topic?

My original interest was in the universality of international law. Does it apply in the same way in all places and to all peoples? Or are there different versions of it? I did not forget about those questions; one of my chapters, in particular, is about the interaction between Western international law and the legal ideas of precolonial Africa and Asia. But my angle of approach shifted. Among other things, I found that it was hard to define ‘state’ in a manner that was consistent with the precolonial practice, which encouraged me to think about statehood differently. The project evolved into an attempt to reconceptualise statehood by showing that international law, both historically and in the current era, has accorded rights and duties not only to states in a strict sense but to a variety of ‘state-like entities’ and by multiple mechanisms.

How long did it take to produce your book from initial conception to publication?

It took me three years to write my doctoral thesis at Cambridge. The book, which I adapted from the thesis, was published a little less than two years later.

What is the most difficult part about writing for you?

Starting is the most difficult part. I feel like I spend as much time on the first paragraph of something as I do on the rest.

Why should people read your book?

There are elements of my book to suit different tastes. Some readers may be interested in the light it sheds on the precolonial and colonial history of international law. But the book also provides a doctrinal explanation of how states emerge and of the roles of recognition, the use of force, and self-determination. Although grounded in practice and opinio iuris, the explanation is reducible to a short list of rules and exceptions that may help teachers and students to organise a complex topic. It improves on many other explanations by taking account of state-like entities other than states in a strict sense; in that respect, it offers insights into ongoing debates such as the one about the statehood of Palestine. Finally, for the theoretically minded, the book helps to clarify the meaning of concepts such as personality in international law.

What book is currently on your bedside table?

I have been reading Capital and Ideology by Thomas Piketty, which I recommend.

What are you working on now?

I have a few projects, two of which are connected with topics that are discussed in the book. One is about the position of Aboriginal and Torres Strait Islander peoples in international law before and after the colonisation of Australia. The first part of that has been published: ‘Was the colonisation of Australia an invasion of sovereign territory?’ (2019) 20 Melbourne Journal of International Law 493. The other project is about aspects of the law of self-determination.

Rowan was also interviewed about his book in this recent podcast: ‘States and “state-like entities” with Dr Rowan Nicholson’ (December 2020) Sydney Talks International Law