Statehood Theory: Current Scholarship on the Various Theories of Statehood in International Law

Abstract

Article 1 of the Montevideo Convention contains the general starting point of essential statehood criteria. It provides that: ‘the state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) a capacity to enter into relations with other states.’ The state is commonly defined as a community which consists of a territory and a population subject to an organized political authority; so that such a state is characterized by sovereignty. A territorial entity acquires the legal status on achieving the basic characteristics associated with the concept of a state, i.e., a defined territory, an operating and effective government, and independence from outside control. The normative theory of recognition offers criteria for recognition of political entities as states by the international community. This raises questions about the nature of statehood and how it is achieved. It has been argued that violation of fundamental norms of international law, such as the annexation of existing States, or the creation of States by military force, might prevent the creation of a State. Assuming that these norms are applicable within the context of statehood, the above arguments reach beyond the generally accepted criteria. Consequently, currently there is extensive argument regarding the sufficiency or lack of it of the current criteria for statehood, and about whether the need exists for its augmentation with additional norms that should be considered generally as supplementary criteria of legality regulating the creation of States. In current international practice, cases exist in which considerations other than solely the Montevideo requirements were applied by states. At times entities which did not meet the classical criteria were recognized as independent. In other cases, recognition was denied entities which seemed to fulfil the criteria. Argument exists suggesting the irrelevance of the classical criteria, and postulating that currently they are only useful in concealing the real political or other motives of states when considering recognition of new entities. This argument however, underestimates the continued importance of the classical criteria. The true position is that the classical criteria still form the initial and basic normative requirements for assessing statehood, although their complete fulfilment is no longer the only yardstick. The continued importance of the classical criteria is because they primarily disclose the irreducible elements required for an entity to effectively function as a state. Consequently, in the absence of meeting the classical criteria by an entity striving for statehood, compelling additional considerations must be presented in order for the entity to be recognized. Complete abandonment of the classical criteria is not suggested by the introduction of these additional criteria.

Keywords: Montevideo Convention, Recognition, Statehood, Territory, Government