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  • Staat und Raum by Bernhard Kempen
  • Jeffrey K. Wilson
Staat und Raum. By Bernhard Kempen. Paderborn: Ferdinand Schöningh, 2014. Pp. 90. Cloth €19.90. ISBN 978-3506774200.

Bernhard Kempen’s Staat und Raum explores the relationship between a state’s sovereignty and its territoriality from a legal perspective. This concise volume stands as part of a series of works (Schönburger Gespräche zu Recht und Staat) that seek to inform the lay public about the legal theories that undergird the modern state in its interactions with society—and in this case, other countries. With the rapid tempo of globalization, which presents states with myriad problems that transcend territorial boundaries, a theoretical consideration of the spatial challenges to state sovereignty appears timely, especially given the growing significance of European Union (EU) for Germany and the general dearth of literature on the subject.

Kempen opens his work with a reflection on the fundamental relationship between the state and its territory. He seeks to disrupt the casual assumption that states preside over clearly defined and delineated spaces. Although state boundaries on the ground are often, but not always, pretty clear, in other dimensions there remains a fair amount of dispute. States legally lay claim to all the material down to the core of the earth, Kempen notes, but above ground there is no clear line between where a nation’s airspace ends and outer space—governed by international conventions and not subject to claims by nation-states—begins. Moreover, the burgeoning of the virtual space of the Internet poses significant challenges to territorial states, which now must contend with unprecedented flows of information often beyond the control of governments. [End Page 207]

Kempen challenges other assumptions about state control of territory. One might think that, by definition, states legitimize themselves through their control of territory, and hence failed states are those that fail to control their territory; Kempen argues instead that, under current international law, states have the right to rule their territories only as a function of the mutual agreement of the international community. Hence, the arbiter of a state’s legitimacy is not the state itself, according to Kempen, but rather the United Nations (UN). Failed states are therefore those that fail to live up to their international obligation to control their territory rather than their own desire to do so; those that cannot maintain order within their boundaries thus open themselves up to UN-sanctioned foreign interventions.

Military action against another state is strongly circumscribed by international law. Since World War II, international agreements such as the UN Charter have sought to maintain the global status quo. They forbid unilateral actions to adjust boundaries and recognize each state as equal, regardless of the size of its territory, population, economy, and so on. Yet given the centrality of maintaining the values of the UN to the global order, Kempen muses, perhaps states’ power in the international realm ought to be defined by their contribution to upholding these values. While he does not state it, this argument would certainly help in Germany’s quiet campaign for a permanent seat on the UN Security Council and could possibly serve as the basis for knocking Russia and China off of it. After all, he points out, the International Monetary Fund (IMF) grants voting rights according to the relative strength of its members’ economies.

International bodies like the UN and IMF—developed to tackle issues that transcend individual states—threaten to erode the sovereignty of states altogether. Some fear the EU stands as a prime example of such developments, with detailed regulations of all manner of activities emanating from Brussels. But while some might see the EU as an incipient European superstate in its own right, Kempen argues that it serves as only a treaty between sovereign states. Only when the EU member states move to dissolve themselves—a prospect he does believe legally permissible, at least in the case of the German Grundgesetz—would it be possible to constitute a European state. For the same reason, he does not anticipate a world superstate under UN auspices looming on the horizon. However, he regards a global development along the lines of...

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