Functional Statehood in Contemporary International Law

Abstract

Functional state-like entities are contributing to the shift of international legal personality from an objective to a subjective regime. What we find are numerous situations where there is an entity that, for one reason or another, cannot be or will not be considered a state. However, the international community needs to engage with those same entities in various functional ways for pragmatic reasons. For lack of a different paradigm, the entity is therefore treated as if it were a state on a functional basis, while all the while continuing to refuse it formal statehood. The difficulty is that this treatment exposes a relativity in perceptions of statehood and may bring the objective statehood regime into doubt. Subjective statehood is increasingly the norm and suggests that objective statehood is not (or no longer) correct.

Keywords: statehood, objective, subjective, relative, functional, personality, constitutive, declaratory

JEL Classification: K00, K10, K19, K30, K33, K39