Conceptions of State Identity and Continuity in Contemporary International Legal Scholarship

29 Pages Posted: 14 Jan 2016 Last revised: 5 Feb 2017

See all articles by Anne Østrup

Anne Østrup

University of Copenhagen, Faculty of Law

Date Written: January 14, 2016

Abstract

This paper offers an examination of the substantive conceptions of state identity/continuity advanced in contemporary international legal scholarship. It first outlines in a historical perspective the core theoretical debate concerning the nature of state succession and examines the meaning of the concept of state identity/continuity in this context. Having dismissed a general concept of legal personality as a point of differentiation between state identity/continuity and state succession, the paper identifies four main substantive conceptions of state identity/continuity in contemporary legal scholarship: a ‘formal’ conception, a ‘material’ conception, a ‘procedural’ conception, and finally a ‘relativist’ or ‘deconstructivist’ approach to the concept of identity/continuity. The paper then explores the strengths and weaknesses of each of these conceptions in terms of both their theoretical underpinnings; their conformity with state practice and their implications for the legal concept of statehood. The paper argues that both the formal and material conceptions of state identity/continuity suffer from serious theoretical shortcomings. The procedural conception is generally more consistent, although it may not – as pointed out by proponents of the deconstructivist approach – entirely encompass the many variations of state practice. In particular, the procedural conception of identity/continuity stands out by maintaining the aspiration of a normative approach to the question of state identity/continuity, and thus to the problem of statehood in international law, even if there is a certain gap between theory and practice.

Keywords: statehood; state identity; state continuity; state succession; international legal personality; intellectual history of international law

Suggested Citation

Østrup, Anne, Conceptions of State Identity and Continuity in Contemporary International Legal Scholarship (January 14, 2016). European Society of International Law (ESIL) 2015 Research Forum (Florence); University of Copenhagen Faculty of Law Research Paper No. 2016-15. Available at SSRN: https://ssrn.com/abstract=2715701 or http://dx.doi.org/10.2139/ssrn.2715701

Anne Østrup (Contact Author)

University of Copenhagen, Faculty of Law ( email )

Studiestraede 6
Studiestrade 6
Copenhagen, DK-1455
Denmark

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