The Concept of the State and its Right of Existence

Cambridge Journal of International and Comparative Law, Vol. 4(3) 2015

19 Pages Posted: 17 Jun 2016

See all articles by Jure Vidmar

Jure Vidmar

Maastricht University - Faculty of Law

Date Written: September 2015

Abstract

The right of a state to existence has two aspects: the putative right of an entity to become a state and the right of an existing state not to be extinguished, or territorially diminished. In a world completely divided between states, the two aspects of the right of a state to existence lead to conflicts. Neither aspect of a right is absolute, however. The article considers the various conceptualisations of the state in international law and makes an argument against the anthropomorphic definitions of the state. Statehood is legal status of a territory under customary international law, and implies the existence of certain rights and duties inherent in this status. A state can also exist as a legal fiction and exercise its rights on the international plane even if it cannot exercise its sovereign powers in its (entire) territory. This is due to the fact that statehood is a concept grounded in law rather than fact.

Keywords: concept of the state, right to exist, international legal status, customary law

Suggested Citation

Vidmar, Jure, The Concept of the State and its Right of Existence (September 2015). Cambridge Journal of International and Comparative Law, Vol. 4(3) 2015, Available at SSRN: https://ssrn.com/abstract=2796206

Jure Vidmar (Contact Author)

Maastricht University - Faculty of Law ( email )

P.O. Box 616
Maastricht, 6200
Netherlands

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