Author: Alex Green
Learning objectives: Understanding the history, nature, and contemporary context of statehood; the law of state creation; the principles of state continuity and extinction; the status of contemporary states; and the typical legal consequences of statehood.
A. Introduction: The Nature and History of Modern Statehood[edit | edit source]
As quipped by Thomas Baty, international law ‘it is universally agreed…has something to do with states’. Although states are no longer the only subjects of international law (if indeed they ever were), they remain some of the most important and powerful. Moreover, in the absence of a global government, states constitute some of the most important institutional actors within the international legal order in terms of law creation, interpretation, application, and enforcement. To quote James Crawford, the laws of ‘statehood are of a special character, in that their application conditions the application of most other international law rules’. Given the importance and complexity of these laws, conceptual clarity is essential.
To that end, we must distinguish three sets of questions about states. The first set is existential, concerning the conditions necessary for new states to arise (creation), endure (continuity), and become destroyed (extinction). The second set covers the essence of statehood, or to put this another way, the concept of statehood itself. These are by far the most challenging to answer, encompassing political philosophy and sociology as well as international law, and implicate issues of justice, equality, and sovereignty. The third set concerns questions of entitlement, encompassing the ‘juridical consequences’ of statehood, in terms of the characteristic rights and powers that states possess.
One might also add a further set of questions, pertaining to the characteristic obligations that states hold. However, given the extent to which this implicates the law of international responsibility, this chapter will focus exclusively upon existential, essential, and entitlement-based questions, in that order. Before proceeding, however, brief consideration must be given to the emergence of contemporary statehood, such that these three sets of questions can be placed in their proper historical context.
The traditional story about the dawn of modern states is that they first emerged from the 1648 Peace Settlements of Münster and Osnabrück, collectively known as the ‘Peace of Westphalia’. According to Leo Gross, these settlements ‘undoubtedly promoted the laicization of international law by divorcing it from any particular religious background, and the extension of its scope so as to include, on a footing of equality, republican and monarchical states’. This story is so inaccurate as to be effectively mythological. Not only is the ‘Westphalian myth’ problematically Eurocentric, but states of some kind or another have existed within Europe itself since ancient times.
As myths go, Westphalia is nonetheless instructive, albeit because it tells us more about the attitudes of those propagating the story than it does about historical reality. Particularly illuminating are historical attempts to draw retroactive lines of conceptual continuity from the early United Nations period, back through the ‘nation-states’ of the late 19th and early 20th centuries, to some mythologised point at which ‘states [were recognised as]…units in an international society with mutual rights and obligations’. This ideological move is best understood, in my view, as an attempt to legitimate the principle of sovereign equality that predominates within international legal doctrine today (see below). It is perhaps ironic that such legitimising narratives not only risk a naturalistic fallacy (because history alone justifies nothing) but are also unnecessary, since the normative merits of sovereign equality can be assessed on their own terms.
Beyond Westphalia, two more recent legal-historical developments merit attention. First, there is the conceptual decoupling of statehood from nationhood. Second, there is the transition from viewing the (non-)existence of statehood as an issue of social fact to one of legal status. Taking the first, the link between statehood and identifiable nations was pushed most vociferously during the inter-war period. That connection has survived, at least to some extent, within particular branches of contemporary political philosophy and is most neatly captured by David Miller’s claim that “nation’ must refer to a community of people with an aspiration to be politically self-determining, and ‘state’ must refer to the set of political institutions that they may aspire to possess for themselves’. Whatever the merits of this definition for philosophical purposes, it is legally inaccurate. There are many pluri- and multinational states, whose existence and normative value cannot be reduced to their supervenience upon one nation.
Taking the second point, it was once typical to regard statehood as a ‘pre-legal’ sociological fact, rather than a matter of legal status. Lassa Oppenheim famously opined that ‘[t]he formation of a new State is…a matter of fact, not law’, his words being echoed, for example, by Abba Eban on behalf of the State of Israel. In a similar vein, Hersch Lauterpacht argued that, although states lack legal personality until they are recognised by other members of the international community, they have an existence prior to recognition, which, whilst not entirely ‘pre-legal’ in character, corresponds to the existence of factually effective governance over a discrete portion of the globe. More recent scholarship departs from such views, with James Crawford most clearly expressing what is now the more-or-less orthodox position that ‘[a] State is not a fact in the sense that a chair is a fact; it is a fact in the sense in which it may be said a treaty is a fact: that is, a legal status attaching to a certain state of affairs by virtue of certain rules or practices’. This view is wholly supported by the analysis that follows.
B. Existential Questions: Creation, Continuity, and Extinction[edit | edit source]
Questions surrounding the existence of states are some of the most politically charged within international law. This controversy can be found not only in relation to the various national and regional independence movements that are, at the time of writing, active around the world, but also, for example, within the unique challenges posed by the global climate crisis and its implications for the survival of many states at rise from rising sea levels.
I. Creation[edit | edit source]
The law that governs the creation of states can be roughly divided into three parts. The first is the law of recognition, which governs the legal status and effects of foreign recognition upon the emergence of new states, as well as upon the legal status of foreign governments vis-à-vis the states they claim legitimacy to govern. The second is the law that determines the factual antecedents of statehood: those properties that a putative state must characteristically possess so that a plausible claim to new statehood can be made. The third is the complete set of procedural principles that govern the emergence of new states, which in some circumstances may operate so as to deny statehood to an entity that would otherwise possess a plausible claim to that status.
1. The Law of Recognition[edit | edit source]
Whether an entity is recognised as a state or not is of supreme practical importance. Although it is conceivable that non-recognised entities might nonetheless possess statehood, an absence of recognition typically means that the entity in question will not be treated as a state by those members of the international community that refuse to recognise it as such. If non-recognition is total, many of the benefits consequent upon statehood (see below) will not in practice be available to that entity. Moreover, since international law lacks any centralised authority for determining its state subjects, the international community of states must fulfil this function collectively through practices of mutual recognition. Given these points, questions of foreign recognition can often be highly controversial: for example, the State of Israel, amongst others, famously refuses to recognise the State of Palestine, largely in an attempt to ensure its (alleged) non-existence.
The law of recognition can be split into those principles that govern the recognition of states and those that, instead, concern the recognition of governments. Strictly speaking, the latter does not form part of the law of statehood. Where one state has recognised another, it will be legally estopped from acting on the basis that the recognised entity is not a state, at least until it can be demonstrated that recognition has been effectively withdrawn. Changes in government, including under belligerent occupation (see below), do not ordinarily alter this position. Moreover, the very concept of ‘governments-in-exile’, and the effective representation of states before international organisations, assumes a schism between the two. The distinction between the recognition of states and the (non-)recognition of particular governments is therefore of considerable importance. The essence of that distinction is between states as abstract legal entities, understood in the terms canvassed below, and governments as: 1) the political institutions in place within those entities; and/or 2) the collection of individuals who administer those institutions. For example, although very few states have established formal diplomatic relations with the current Taliban government of Afghanistan, there is little doubt that Afghanistan itself remains a state under international law.
Over and above the distinction between states and governments, there are two further aspects of the law of recognition that merit attention here. Both issues, at least for present purposes, are concerned exclusively with the recognition of states. First, there is the so-called ‘great debate’ that surrounds the question of whether recognition is declaratory or whether it constitutes statehood, in the sense of imbuing erstwhile non-state entities with that status. Second, there is the existence of, and the conditions for, the collective duty of non-recognition, which requires existing states not to recognise particular entities, notwithstanding what might be considered their otherwise plausible statehood claims.
a) The ‘great debate’[edit | edit source]
This disagreement holds between those who believe recognition to be merely declarative of already existing statehood, and those who believe recognition instead constitutes (or ‘creates’) that status. The debate, at its most fundamental level, concerns not only the legal status and effects of foreign recognition but also the nature of statehood itself. According to the most extreme version of the declaratory view, recognition is a purely political act that signifies little more than a willingness to engage in full diplomatic relations. On the most uncompromising version of the constitutive view, statehood itself exists only relatively speaking, which is to say only between entities that recognise the statehood of each other. Both views are, according to general consensus, mistaken. Contemporary proponents of the declaratory view typically hold that, although statehood is not legally contingent upon receiving foreign recognition, recognition is nonetheless probative because existing states bear primary legal responsibility for identifying new states as a matter of customary international law. Conversely, contemporary proponents of the constitutive view often hold that although widespread recognition is not always necessary for state creation, it can be sufficient, with recognition itself representing just one means through which statehood can be conferred.
In light of this moderation, it may seem odd that the ‘great debate’ is still presented in such terms. One explanation may be the insistence in some quarters that ‘the declaratory view is generally more consistent with the practice of states’, as well as the less controversial claim that ‘[a]mong writers the declaratory doctrine, with differences in emphasis, predominates’. Logically speaking, there is no necessary dichotomy, at least not between more moderate variants of both views. It is entirely consistent to hold, for example, that foreign recognition has both probative value and constitutive effect in relation to state creation (that is, without also holding that it has the former because of the latter). Moreover, there is no logical obstacle to statehood arising without widespread foreign recognition in some cases and nonetheless arising (at least partly) because of recognition in others. Indeed, the only reason to reject these propositions would be an antecedent commitment to some strong version of either the declaratory or constitutive theories of recognition, which of course begs the question.
The better view is that widespread foreign recognition can indeed have constitutive effect but that it is insufficient for statehood to arise. Recognition bolsters nascent statehood where a plausible claim has been made on the basis of the antecedents discussed below, at least insofar as such recognition is consistent with the procedural principles also listed within this chapter. In fact, where one or more antecedents of statehood are in doubt – particularly the requirement that nascent states possess an ‘effective’ government – widespread recognition can act as a legal counterweight, ‘pulling’, as it were, towards the conclusion that a new state has, in fact, emerged. I have made the normative case for this elsewhere.
b) The collective duty of non-recognition[edit | edit source]
The importance of recognition is such that there are circumstances under which it should not be extended. Within political philosophy, a lively debate persists over precisely when, normatively speaking, nascent entities should not be recognised as possessing statehood. Insofar as international law is concerned, established states will have a duty not to recognise nascent entities when their emergence is attended by serious international illegalities. These are, namely, violations of the norms underlying the procedural principles canvassed below: self-determination; territorial integrity; and the prohibition on the threat or use of force. In practice, violation of the second norm (territorial integrity) is typically attended by violation of the first (self-determination) or third (the prohibition on force). Nonetheless, all three contribute towards the normative foundations of collective non-recognition in justificatory terms, such that the latter will be discussed in the context of all three principles, in what follows.
Example for Collective non-recognition: Southern Rhodesia declared independence from the United Kingdom on 11 November 1965 under the moniker ‘Rhodesia’. Controlled by a white minority, and unopposed militarily by the United Kingdom, it was condemned by the Security Council and the United Nations General Assembly for its racial segregation and widespread ethnic discrimination. (See: Security Council resolutions 217 (1965), 253 (1968), and 277 (1970); and General Assembly resolutions 2022 (XX), 5 November 1965 and 2024 (XX), 11 November 1965.) Crucially, despite swiftly gaining ‘effective’ government in the sense described below, international refusal to recognise either entity was essentially total. Southern Rhodesia no longer exists, following the 1979 Lancaster House Agreement and the resulting independence of the Republic of Zimbabwe on 18 April 1980.
2. The Antecedents of Statehood[edit | edit source]
Accepting the above, particular conditions must be fulfilled before any plausible claim can be made that a new state has emerged. These conditions are best understood as the factual ‘antecedents’ of statehood and constitute, in effect, a collection of paradigmatic properties that new states must possess, at least in the ordinary course of events. Indeed, so central are the antecedents of statehood to existence of statehood that they are often treated as providing a definition of statehood, at least for the purposes of international law. This is, in my view, a mistake. The existential prerequisites of statehood do not wholly to define that concept, which, insofar as it functions within international legal doctrine, is as much a matter of the status, standing, and entitlements that result from a successful statehood claim as the antecedents that make such claims plausible in the first place.
Having said this, the existential prerequisites of statehood nonetheless form an indispensable part of that larger legal concept. The antecedents themselves have historical roots within customary international law, however they are most famously referenced within Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States, which reads: “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) capacity to enter into relations with the other states.” These 'Montevideo criteria' were once considered dispositive, however this is no longer the case. Making adjustments for contemporary practice and scholarship, a more accurate list of factual antecedents reads: 1) a permanent population; 2) a more or less defined territory; 3) an effective government; and 4) relative political independence. In what remains of this subsection, we shall canvass each in turn.
a) A permanent population[edit | edit source]
This antecedent requires there to be a more or less identifiable body of people who are habitually resident upon the territory of the nascent state. Various justifications for this have been posed, however most agree that: 1) states are concerned with governance; and 2) governance requires an identifiable group of ‘the governed’. In contemporary law, there are no limitations upon the size of this group. Tuvalu and the Republic of Nauru, which have populations of under one million, are no less states than the Republic of India and the People’s Republic of China, which have populations well in excess of one billion. Historically, this point was not so clear. As recently as the early twentieth century, some smaller states, such as the Grand Duchy of Luxembourg and the Principality of Liechtenstein, were considered by several larger entities to be of dubious international status, largely on the basis of their relative size. Moreover, although numerous ‘micro-states’ have now joined the UN, they were once excluded from the League of Nations on the basis of their size. A survey of more contemporary practice, however, shows conclusively that in ‘modern’ international law size does not matter.
One other important point to note is that the presence or absence of a permanent population for the purposes of state creation does not require exclusive ties of nationality between that population and the nascent entity. Nationality, though important for many purposes within international law, is determined in relation to the domestic laws of established states, or else by treaty. It follows from this that an entity must possess statehood, or at least an analogous international status, before nationality can arise in relation to it. To avoid any transitional issues arising from state creation by secession or devolution (see below), the position in contemporary international law appears to be that, absent any contrary agreement, nationality of a new state automatically arises in relation to the people habitually resident upon its territory. This is concordant, for example, with Articles 1 and 4 of the International Law Commission’s 1999 Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, the judgment of the Permanent Court of International Justice in the Case Concerning Acquisition of Polish Nationality, and an award by the Eritrea-Ethiopia Claims Commission, where emphasis was placed upon the importance of not arbitrarily revoking nationality when new states arise.
b) A more or less defined territory[edit | edit source]
States are territorial entities, traditionally delineated with reference to their inhabitable land but with consequent entitlements to any internal waters, territorial sea, and to the airspace above this 'horizontal' territory. For the purposes of state creation, this means that some more or less determinate land-based territorial unit must be identifiable in relation to which a nascent state can be said to exist. This point has been put somewhat more extremely by some, such as Philip Jessup, who commented in his capacity as representative of the United States of America ‘that one cannot contemplate a State as a kind of disembodied spirit’. Whether this focus upon land-based territory holds in relation to matters of state continuity is less clear (see below). Nonetheless, insofar as nascent statehood is concerned, the territorial antecedent is quite strict, although two points must be made by way of clarification.
First, although new states cannot emerge without some territory to their name, that territory does not have to be either contiguous or of any particular size. The Republic of Indonesia, which is comprised of around 17,500 separate islands, is no less a state than the Republic of Kenya or the Republic of Bulgaria, whilst even very small territorial units can be subject to plausible statehood claims. The Principality of Monaco, for example, has a land-based territory of less than 1.95 square kilometers, whilst the Vatican City has less than 0.5. Second, although ‘a more or less defined territory’ implies a geographical area that is relatively determinate, the existence of disputes over the status or extent of the territory in question will not prevent statehood from arising. It has at times been suggested that ‘when [there are]…doubts as to the future frontiers of a serious nature, statehood [itself is] in doubt’, although this somewhat misstates the issue. The presumption of territorial integrity – that is, of other states – can and does condition state creation, however the existence of disputes as such has no material bearing upon the territorial antecedent, which is satisfied simply when a provisionally identifiable area of the globe is subject to effective governance (see below). One illustrative example is that of the State of Israel, which was admitted as a Member State of the United Nations on 11 May 1949 notwithstanding ongoing disputes as to both the extent of its territorial limits and the soundness of its claim to hold any territory at all in a lawful manner.
c) An effective government[edit | edit source]
According to several orthodox views of contemporary international law, the requirement of effective government is central to state creation. Indeed, Crawford goes so far as to suggest that the territorial antecedent itself is little more than a specification of the fact that ‘effective government’ means ‘effective governmental control over a more or less defined territory’. Whether or not this is true, it is clear that effectiveness holds considerable sway over the emergence of statehood in the ordinary course of events. In the case of the Republic of Finland, which seceded from the Russian Empire in 1917, the prevalence of ‘revolution and anarchy’ was held to have prevented the new state from arising until May 1918. Such cases have often been argued to be paradigmatic.
Two questions nonetheless persist in relation to the effectiveness antecedent. The first is what precisely makes a government ‘effective’: what are the conditions (or ‘desiderata’) of effectiveness and how, as a result, does the law of statehood conceptualise governance? Call this the ‘purposive’ question. The second concerns the extent to which government must be effective, no matter what 'effectiveness' may mean in purposive terms. Call this the ‘variability’ question. Both questions have more-or-less orthodox answers, which are characterised by Crawford in the following terms: ‘to be a State, an entity must possess a government or a system of government in general control of its territory, to the exclusion of other entities…[and] international law lays down no specific requirements as to the nature and extent of this control, except that it include some degree of maintenance of law and order and the establishment of basic institutions’. I have challenged this view in other work, claiming that contemporary practice implies that ‘effectiveness’ characteristically requires the protection of basic political liberties, even if a demonstrable capacity to do so is not always necessary on the part of nascent states.
What does seem clear is that, purposively speaking, ‘effective’ government does not imply democracy, nor does it require a demonstrable capacity to achieve the full and speedy protection of basic human rights. In terms of variability, it seems that at least in some circumstances, such as those where statehood goes effectively unopposed, the requirement that government establish ‘some degree of maintenance of law and order’ might be extremely thin. For example, when the Kingdom of Belgium was forced to grant independence in 1960 to what is now the Democratic Republic of Congo, the latter swiftly suffered several secession movements within its territory, an upsurge in endemic violence, and a continued Belgian military presence. Nonetheless, the DRC was quickly recognised to be an independent state.
d) Relative political independence[edit | edit source]
In the ordinary course of events, nascent states must demonstrate an absence of foreign domination, which is distinguishable from both the absence of foreign political influence and the absence of dependence upon foreign infrastructure. By way of example, no serious doubt pertains as to the independence of the Principality of Liechtenstein, notwithstanding the fact that (out of logistical necessity) it makes use of Austrian prisons rather than maintaining its own. Such cases can be usefully contrasted with the erstwhile foreign policy of Great Britain, which historically claimed an entitlement to bind its Dominions, for instance, to the 1924 Treaty of Lausanne without their permission. Such asymmetric authority claims constitute foreign – in this case, colonial – domination par excellence.
Non-domination can be assessed both formally and de facto. Formally speaking, independence will be in doubt where another state makes a legally plausible authority claim over the territory in question, whether that claim of right concerns the internal affairs or the foreign relations of the affected entity. In de facto terms, the question is whether there exists substantial external control over the governmental functions or territory of the nascent entity by some other state. For example, the purported creation of the State of Manchuria (Manchukuo) by the erstwhile Empire of Japan in 1932 was generally denied recognition on the basis that Manchukuo was, in fact, a ‘puppet’ state lacking de facto independence. As this also neatly demonstrates, in circumstances where formal independence is apparent but de facto independence is lacking, the latter should be considered the more probative.
e) Summary[edit | edit source]
Although all four antecedents are important for state creation, they do not operate as a set of strictly necessary conditions that must each always be satisfied before state creation can occur. In some cases, one or more antecedents may be present to a lesser extent than usual and, nonetheless, state creation may still occur. The most commonplace circumstances of this kind are where statehood is widely recognised despite the absence of effective governance over all or some part of the nascent entity’s alleged territory. In such circumstances, that recognition arguably has a partly constitutive role in relation to the emergent state. However, such facts also demonstrate that the proper application of statehood’s antecedents requires a holistic exercise of judgement in relation to any given case. It is their collective and sufficient presence or absence that is determinative of plausible statehood claims, not their discrete fulfilment, taken in isolation.
3. Procedural Principles[edit | edit source]
An entity satisfying the antecedents of statehood has a plausible statehood claim and may, as such, emerge as a new state. Nonetheless, such plausible claims may nonetheless fail if the nascent entity violates one of three procedural principles, which, in combination with the cumulative effects of recognition, mediate the process of state creation. These principles are: 1) the ‘negative’ elements of self-determination; 2) the presumption in favour of territorial integrity; and 3) the prohibition on the threat or use of force. In what follows, I canvass all four. First, however, it must be stressed once more that neither the antecedents of statehood, nor these procedural principles, are generally considered to be absolute disqualifiers for the creation of new states. A state may arise notwithstanding its violation of some relevant procedural principle, just as it may arise in the apparent absence of a factual antecedent. In each case, holistic judgement is required, taking into account any acts of recognition that may lend credence to the creation of a newly independent state. Having said this, it is highly likely that a failure to satisfy even one procedural principle will result in statehood not accruing. Moreover, violation of one of these three is characteristically sufficient to trigger the duty of collective non-recognition, noted above.
a) ‘Negative’ self-determination[edit | edit source]
There is a strong legal presumption against state creation where this would result in the formal disenfranchisement or political subordination of large sections of a territory’s extant population. This presumption is a function of collective self-determination as an underlying value of contemporary international law. In addition to weighing against state creation in circumstances where this ‘negative’ requirement of self-determination is breached, the emergence of an entity in violation of this principle operates as a trigger for the duty of collective non-recognition. This can be seen most clearly in the alleged emergence of the Turkish Republic of Northern Cyprus, as well as in the unsuccessful attempts, by the apartheid government of South Africa, to create the Bantustans of Transkei, Bophuthatswana, Venda and Ciskei.
Example for Negative self-determination: Northern Cyprus emerged in 1974 under a Turkish Cypriot administration with military support from the Republic of Turkey (Loizidou and Cyprus (intervening) v Turkey, Merits,  ECHR 70, paras.16-23). Its creation resulted in some 211,000 Greek Cypriots being displaced from the North, whilst those who remained faced severe restrictions upon their liberty, most notably in terms of freedom of movement (Cyprus v Turkey, Merits, App no 25781/94, (2002) ECHR 2001-IV, paras. 28-48). These dispossessions and restrictions caused mass disenfranchisement, which resulted in collective non-recognition under the auspices of the Security Council (Security Council resolutions: 541, 18 November 1983; and 550, 3 May 1984). To date, only Turkey recognises the statehood of this entity. As regards the Bantustans, collective non-recognition was supported by both the General Assembly and the Security Council (General Assembly resolutions: 2775E (XXVI), 29 November 1971; 2923E (XXVII), 15 November 1972; 3151G (XXVIII), 14 December 1973; 3324E (XXIX), 16 December 1974; 3411D (XXX), 28 November 1975; and 31/6A, 26 October 1976. Security Council resolutions: 264, 20 March 1969; 402, 22 December 1976; 407, 25 May 1977; 417, 31 October 1977; 556, 23 October 1984; and 581, 13 February 1986). As put by the President of the Security Council, the Bantustans policy was not a genuine attempt to create independent states on an ethno-cultural basis but was ‘designed to divide and dispossess the African people and establish client states under [South Africa’s] dominion in order to perpetuate apartheid’ (Note by the President of the Security Council, S/13549, 21 September 1979). This effectively divested large sections of the South African population of their nationality, undercutting their (already limited) capacity to participate in collective self-determination through their erstwhile state. The Bantustans, partly as a result of collective non-recognition, no longer exist.
b) The presumption in favour of territorial integrity[edit | edit source]
This presumption is a function of the entitlements that established states enjoy to: 1) continue to possess territory to which they are legally entitled; and 2) administer that territory free from the wrongful interference of other states. These entitlements appear in the General Assembly’s Friendly Relations Declaration, which was accepted to reflect customary law in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)'), as well as the wording of Article IV of the Final Act of the Helsinki Conference on Security and Co-operation in Europe (1975). The principle of territorial integrity itself also appears in Article 2(4) of the 1945 Charter of the United Nations.
In terms of state creation, the presumption in favour of territorial integrity has three implications. First, the normative importance of territorial integrity reinforces the application of the other procedural principles listed in this chapter. By virtue of the presumption that established states will remain whole, greater weight is placed upon any illegality occasioning state creation when determining whether or not a new state has emerged. This can be seen, for example, in the response of the international community to the Russian Federation’s unlawful recognition of the so-called Donetsk People’s Republic and Luhansk People’s Republic in the Donbas region of Ukraine in 2022.
Second, at least according to orthodox interpretations, it entails that international law grants no entitlement to secession (the creation of new states via unilateral departures from ‘parent’ entities). The orthodox argument is that only erstwhile colonies, insofar as they were non-self-governing, possessed a right to independent statehood and that, following the decolonisation movement, no entities now exist to which such a right might apply. Instead, following the International Court of Justice in its advisory opinion on the Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, this line of argument maintains that international law: 1) generally permits secession but accords no entitlement to secede; but 2) will nonetheless hold secession unlawful when it is occasioned by violations of self-determination or the prohibition on the use of force. This arrangement protects territorial integrity, according to some scholars, because the absence of a right to secession means that nascent entities must prove either that their independence was granted by their 'parent' state or that they exhibit the antecedents of statehood to such an extent (and for such a length of time) that the practical reality of their statehood cannot be cogently denied.
Third, and as a result, the presumption in favour of territorial integrity means that grants of independence have considerable importance. Such grants characteristically occur through devolution (the creation of new states via the consent of parent entities). Where the consent of a parent state is provided, no issues of territorial integrity arise because that entitlement is waived in relation to the nascent entity. In this respect, consent places new states in an analogous normative position to those arising from the dissolution of their predecessors. In both cases, the territorial integrity of the erstwhile sovereign no longer pertains.
c) The prohibition on the threat or use of force[edit | edit source]
This prohibition is enshrined in Article 2(4) of the Charter of the United Nations. Attempts to create states through the unlawful use of force will trigger duties of collective non-recognition. This is justified not only by the importance of ensuring that unlawful force does not benefit states that use it but also by the need to uphold the territorial integrity of affected state from the attacks of foreign belligerents. Evidence for this duty can be found, for example, in the international response to the Russian Federation’s 2022 military invasion of Ukraine, which purported to be for the purpose of securing ‘remedial’ independence for the so-called Donetsk People’s Republic and Luhansk People’s Republic within the Donbas region.
Some have suggested that unilateral foreign intervention might be permissible to secure regional secession in response to mass atrocities conducted by a parent state. However, this is both legally controversial and, in any event, inapplicable to the aforementioned example of the Donbas, where no evidence of mass atrocities on the part of Ukraine has emerged, notwithstanding Russia’s multiple assertions to the contrary. A more plausible example might be the People’s Republic of Bangladesh (or East Pakistan as it was then known), which gained generally recognised independence despite unilateral military intervention by the Republic of India. However, even those who argue in favour of a right to remedial secession, and take the atrocities perpetrated in East Pakistan to have triggered such a right, typically stop short of arguing that India’s unilateral intervention was lawful as a result. A more credible view is that evidence of mass atrocities renders international countermeasures short of unilateral military intervention permissible. It is also possible that the international community may, at the same time, come under an ‘imperfect’ obligation to provide military support for independence under the auspices of the UN Security Council but that the lawfulness of military intervention would be contingent on an authorising resolution being adopted.
II. Continuity and Extinction[edit | edit source]
States are, in general, far harder to destroy than they are to create. This is so because there exists, as a matter of customary international law, a strong but rebuttable presumption of state continuity, which serves to ensure relative geopolitical stability. Nonetheless, states can and do become extinct. This happens when the antecedents of statehood become absent to such an extent and for such a length of time that it no longer remains plausible to hold that an independent exists. To recap, the relevant antecedents are: 1) a permanent population; 2) a more or less defined territory; 3) an effective government; and 4) relative political independence. The total abrogation of one of these four can be sufficient to eliminate an erstwhile state, however the threshold for this occurring is, due to the presumption in favour of continuity, extremely high. An effective government, for example, may remain absent for many years, as in the case of the Democratic Republic of Congo, without the extinction of the state in question. In a similar vein, even considerable changes in territory, or the total loss of de facto independence due to belligerent obligation, will not ordinarily result in the extinction of the affected state. It is perhaps indicative that only eight states became extinct in the period between 1945 and 2005, whilst within the same period 128 new states came into being. One important example of extinction is the former Socialist Federal Republic of Yugoslavia, the dissolution of which resulted – following a period of protracted conflict complicated by considerable international intervention – in the emergence of what are now Bosnia and Herzegovina, the Republic of Croatia, Montenegro, the Republic of North Macedonia, the Republic of Serbia, and the Republic of Slovenia, as well as the partially recognised Republic of Kosovo.
1. Extinction and Succession[edit | edit source]
If a state does become extinct, its space on the map will not remain empty for long. Should a new state arise within the territory of an extinct entity, we must then asked whether the newcomer will be a ‘successor’ to the former state. Already existing states can also succeed others, either where an establish entity absorbs the territory of an extinct community, or where two or more established states merge to form a new entity. More generally, succession to existing rights and obligations is possible following secession or devolution, as well as, historically speaking, decolonisation. In each case, the question is whether the new entity in fact succeeds to the obligations of the previous one. Unfortunately, the 'law of state succession' (such as it is) forms little more than an area of legal controversy concerning what happens when the statehood of one entity is displaced by that of another. There is no ‘overriding principle, or even a presumption, that a transmission or succession of legal rights and duties occurs in a given case’.
At a general level, only the following propositions hold with any degree of certainty. First, where a successor state emerges but its predecessor state endures - for example, within circumstances of decolonisation - succession to treaties is not possible, with the notable exception of boundary treaties, which govern the extent of the new entity’s extant borders. Second, successor states are not liable for their predecessor’s international wrongdoing unless they have by conduct adopted the unlawful activity in question. Third, membership of international organisations characteristically does not pass to succeeding states, although special accommodation can be made and the matter ultimately rests with the constitution or charter of the relevant organisation. Succession to treaty obligations is now partially governed by the 1978 Vienna Convention on Succession of States in respect of Treaties, although only 23 states have both signed and ratified that Convention. As such, it is typically necessary to proceed by examining discrete customary principles and treaty arrangements that may or may not govern particular state successions. To take one example, the 1919 Treaty of St Germain-en-Laye covered the inheritance of public debts by the successor states to the Austro-Hungarian monarchy, while there is a generally accepted customary presumption, to take another example, that ownership of public property on the territory of a successor state is passed to that successor.
Most importantly for present purposes, succession is both conceptually distinct from the continuity and identity of states and mutually exclusive with those two things. Where a state is continuous through time or otherwise identical with some prior entity, issues succession do not arise because that state is the same entity and it makes no sense to speak of something 'succeeding itself'. This matters because it is only in cases of continuity and identity - and not in circumstances of succession - that every single entitlement and obligation of a state can be presumed to endure through time.
2. Continuity and the Climate Crisis[edit | edit source]
One particularly troubling possibility caused by the contemporary law of continuity and extinction is the existential threat posed to Small Island Developing States (SIDS) by the global climate crisis. Like all states apt to lose territory due to rising sea levels, SIDS face the shrinking of their maritime boundaries, with all the cultural, economic, and social loss this implies. However, unlike larger states, several SIDS may well suffer legal extinction due to human-caused climate change. On what I have elsewhere called the 'austere view' of state continuity, the submergence of the islands these states occupy would result in the total loss of their territory, which, if physically irrecoverable, would result in an indefinite failure to satisfy the territorial antecedent. This would, or so the argument goes, result in a loss of statehood, rendering the erstwhile population of affected SIDS not only homeless but stateless as well. At the time of writing, several SIDS, including Vanuatu and Tuvalu, are taking steps to combat the austere view as part of an overall attempt to address the long-term harms they stand to suffer from the global climate crisis. The eventual success or failure of these attempts will, in large part, turn upon there being sufficient political will to adopt a clear position in favour of Small Island State resilience. At this stage, only time will tell whether such will shall manifest.
C. Questions of Essentiality: Sovereignty and Equality[edit | edit source]
As noted above, questions concerning the concept of statehood itself are some of the most challenging to answer, touching upon political philosophy (amongst other things) in addition to international law. Given our present focus upon doctrinal matters, this chapter will consider only briefly the deeper question of what states ‘really’ are and focus instead upon the idea of sovereign statehood as an equal legal capacity, which attaches to all states and distinguishes them from other actors within the international legal order. This focus is justified because sovereign equality has several immediate implications in terms of the juridical consequences of statehood (considered below), such that reflection upon that concept, from the legal point of view, extends beyond mere theoretical speculation.
I. The Basic Question[edit | edit source]
Different academic disciplines may ask ‘what states are’ for different reasons, not all of which will be strictly relevant to international law. Within legal and political philosophy, for example, the essence of statehood is typically interrogated in relation to its purpose. In this way, Allen Buchanan characterises states as the units of human social and political organisation responsible for securing justice via the protection of fundamental human rights. This approach is mirrored by Patrick Capps, who claims that ‘the moral concept of the state’ is concerned with ‘the respect and protection of certain rights associated with human dignity’. Notably, both authors distinguish these purposive claims about statehood from their assessment of the ‘juridical’ state, which is the state as it appears within international law. Purely legal accounts of statehood, insofar as they are distinct from assessments of ‘moral’ or ‘normative’ essence, are typically articulated in two ways (although these sometimes overlap). They either reflect the antecedents of statehood, on the basis that statehood reduces to a particular kind of effective territorial governance, or they list ‘the exclusive and general legal characteristics of States’, which according to Crawford are as follows:
(1) In principle, States have plenary competence to perform acts, make treaties, and so on, in the international sphere: this is one meaning of the term ‘sovereign’ as applied to States.
(2) In principle States are exclusively competent with respect to their internal affairs, a principle reflected by Article 2(7) of the United Nations Charter. This does not of course mean that international law imposes no constraints: it does mean that their jurisdiction over internal matters is prima facie both plenary and not subject to the control of other States.
(3) In principle States are not subject to compulsory international process, jurisdiction, or settlement without their consent, given either generally or in the specific case.” [Footnotes and citations omitted.]
Crawford continues by adding to this list (4) the formal equality of states; and closes his assessment of ‘the core of the concept of statehood’ by remarking (5) that derogations from these general principles will not be presumed, referencing the famous judgement to that effect of the Permanent Court of International Justice in The Lotus case.
This conceptual separation of statehood into its legal and non-legal manifestations – the latter proceeding from anthropological, sociological, normative-philosophical, and other ‘non-legal’ points of view – is, as stated above, quite typical. Nonetheless, those such as myself, Fernando Tesón, and Mortimer Sellers, have developed discrete understandings of statehood based on philosophically informed reconstructions of international legal doctrine. These reconstructions are unique insofar as they each reinterpret the law of statehood in light of particular philosophical principles, whilst at the same time constructing the full account of those principles with reference to contemporary law. Substantively, such work characterises statehood as it exists within contemporary law in terms of, respectively and for example, political community, legitimate governance, or republicanism. Notwithstanding the insights offered by such approaches, I stick to more 'mainstream' doctrinal work in what follows.
II. Sovereign Statehood as Status and Capacity[edit | edit source]
Sovereignty can be an unhelpfully opaque legal concept, due to the controversial place it holds within domestic law, normative philosophy, and contemporary political rhetoric. Internationally, 'sovereignty' is often used as synonym for statehood itself (‘a sovereign state’), as shorthand for the minimal degree of political independence necessary for statehood to arise or endure, or else to express the residual liberty that states possess when they are not otherwise legally bound. Moreover, ‘sovereignty’ can not only be used to articulate claims of territorial title (‘sovereignty over territory’) but also as a catchall expression for the complete set of legal capacities and entitlements that states characteristically possess. I prefer the latter usage, for the following reasons.
Historic usage tended to link sovereignty to the existence of an identifiable sovereign. In the words of Thomas Hobbes, such an entity ‘consisteth the Essence of the Common-wealth; which (to define it,) is ‘One Person, of whose Acts a great Multitude, by mutuall Covenants one with another, have made themselves every one the Author, to the end he may use the strength and means of them all, as he shall think expedient, for their Peace and Common Defence.” This historic insistence upon the right of sovereigns to act ‘as [they] shall think expedient’, created within both philosophy and law ‘a tendency to associate with [sovereignty]…the idea of a person above the law whose word is law for his inferiors or subjects’.
An important contemporary implication of this is the common but mistaken belief that sovereignty statehood entails legally unlimited authority. This has caused some international lawyers to pose as a ‘dilemma’ the question, ‘can the existence of rules binding upon states be reconciled with the very notion of sovereignty?’. Much like the old theological paradox of whether an omnipotent God can create a stone that He is incapable of lifting, this line of enquiry queries, for example, whether ‘sovereign states’ can ‘truly’ possess the capacity to bind themselves via treaty. If we say ‘yes’, then they can become legally bound, which undermines their ‘unlimited’ authority, whereas if we say ‘no’ then that authority is also undermined, since they cannot then have the authority to bind themselves.
The answer to this ‘dilemma’ lies in rejecting the belief that sovereignty implies unlimited authority. Rather than being inconsistent with legal obligation, state authority is itself an aspect of international law and therefore must possess legally defined limits. This holds because the sovereignty of any single state because it is a state necessarily implies the equal sovereignty of all others. In a world where more than one state exists, freedom from obligation and wholly unlimited authority thus becomes illogical. The better view is that, ‘sovereignty’ means no more nor less than the full set of legal capacities ordinarily associated with statehood. To put this another way, to be sovereign for the purposes of international law means to have the status of an established state. In concrete terms, this has two implications. First, that the acquisition and maintenance of sovereignty turns on the law that governs the creation, continuation, and extinction of states, even though this law may then be supplemented by other principles. Second, 'sovereignty as status and capacity' means that sovereignty implies the juridical consequences of statehood canvassed below – including entitlements of (relative) autonomy, security, and standing – in addition to the obligations necessarily to secure those entitlements by all states on a formally equal basis.
II. Sovereign Equality in an Unequal World[edit | edit source]
Although states possess formal equality, in almost all other respects they are staggeringly unequal. For example, extensive scholarship exists on disparities of international power, within which considerable attention is paid to the inequalities of global influence created by the existence of the so-called ‘Great Powers’. States are also unequal, to take another example, in terms of their size (both geographically and demographically), their access to natural resources, and qualitatively, in terms of their democratic credentials and their compliance with international human rights standards. Moreover, some have coastlines whilst some are landlocked, whilst others govern unique ecosystems, cultural sites, and Indigenous communities. In light of this, it is difficult to imagine a group of 'equals' with less equality than contemporary states. Fortunately for present purposes, to invoke equality is, conceptually speaking, to preclude total sameness. If two things are identical, in the sense that they are completely indiscernible, then they are not equal but entirely the same. The formal equality of states should therefore be understood in terms of normative equality, which is to say an equality of status. To paraphrase the philosopher Thomas Nagel, states are formally equal in that they hold the same place within the ‘normative community’ of international law. The content of that status is controversial, being connected to the philosophical as well as the legal essence of states, however its implications are reasonably clear and encompass the full incidents of sovereignty (canvassed above).
D. Questions of Entitlement: The Juridical Consequences of Statehood[edit | edit source]
Care must be taken when discussing the rights and powers that states characteristically enjoy because, in reality, no two states ever possess precisely the same set of entitlements. States are party to different treaties, members of different global and regional organisations, and stand in different positions vis-à-vis customary international law. Given this point, when discussing states as such, it is possible to speak only at relatively high levels of generality. This is the approach taken below. In the first instance, attention is given to entitlements that implicate state autonomy and security, namely: 1) rights to territorial integrity; 2) rights to political independence; 3) freedoms to choose political, social, economic, and cultural systems; and 4) permanent sovereignty over natural resources. Having considered these elements, attention will then be given to entitlements that implicate the standing of states, including the bundle of juridical consequences that embody international legal personality, as well as the powers to create and apply international law.
I. Autonomy and Security Entitlements[edit | edit source]
The entitlements that protect the autonomy and security of states correspond to their right to continue to exist as states, which is to say as ‘sovereign’ members of the international community. For this reason, several of these entitlements correspond, in a more or less direct manner, to the existential conditions for the creation and continuation of statehood, canvassed above. To take just one example, insofar as demonstrating relative political independence provides conditions for the emergence and endurance of statehood, a state’s right to political independence grants it legal protection from foreign domination and, as a result, a certain degree of resilience against existential threats of that kind.
1. Territorial Integrity[edit | edit source]
The principle of territorial integrity was discussed above insofar as it relates to the creation of new states. To reiterate the main points made there, that principle is a fundamental constituent of the United Nations Charter system, referenced in Article 2(4) of that text and therefore very often linked to the prohibition on the threat and use of force within international relations. Further reference is made within the General Assembly’s 1970 Friendly Relations declaration, which mirrors customary international law. These elements support the proposition that states are legally protected from incursions into their territory by other states, both in existential terms and insofar as such incursions generate recoverable loss. Moreover, the operation of territorial integrity within the law of state creation is to present a normative hurdle that seceding entities must in some manner overcome. In this manner, established states are entitled not only to continue to exist within their extant territorial boundaries but also to do so free from military or paramilitary interference from other states.
2. Political Independence[edit | edit source]
The right to political independence, protected by the principle of non-intervention, mirrors the right to territorial integrity in that it not only concerns an established state’s right to continue to exist but its right to freedom from foreign domination. It is also, to this extent, the corollary of independence as an antecedent of statehood, representing the right of states, once fully independent, to remain so. As such, much of what was said above also applies here. Although states are entitled to be free from the domination of foreign governments, they are not entitled – nor would be possible to entitle them – to freedom from the political influence of other states. To take just one example, interference in governmental elections, be it covert or otherwise, constitutes a breach of the non-intervention principle (and a violation of political independence), whereas exerting purely diplomatic influence upon domestic policy does not.
Historically speaking, Latin American states have been particularity attached to the principle of non-intervention, largely due to attempts by the United States of America to exert economic and military pressure over them since the middle of the nineteenth century. During the struggles for independence undertaken by Spain's former colonies, the USA formally maintained neutrality but nonetheless supplied arms to Spanish colonial forces (UN Doc A/C.1/L343/Rev.1, para 7-10). Subsequent to gaining independence, therefore, an overwhelming trend of relying upon, and citing the importance of, non-intervention persisted amongst the Latin American states.
In practice, applying the non-intervention principle faces greatest practical difficulties when determining the practise line between foreign domination and mere influence. Although the threat or use of force, for example, represents a clear violation of that principle, the ICJ in the Nicaragua Case explicitly recognised the possibility that 'indirect' action supporting subversive activities within another state may violate that principle as well. (Military and Paramilitary Activities in and against Nicaragua (Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, p.14.)
This was affirmed in 2005, when the International Court of Justice cited the principle of non-intervention when passing judgment against the Republic of Uganda for supporting rebel forces in the Democratic Republic of the Congo. In paragraph 164, the ICJ held that, “the principle of non-intervention prohibits a State ‘to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State.’” (Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, ICJ Reports 2005, p.168.)
In each case, the relevant questions are first whether the alleged intervention was coercive or subversive in nature - thereby amounting to an attempt at foreign domination - and then whether any available defences are available, such as the implied consent of the complainant state.
Given the commonplace conflation of independence with sovereignty, it is necessary to remark upon several other things that do not frustrate political independence. First, in much the same way that they pose no difficulties for state sovereignty, the opposability of international obligations against a state in no way undermines its legal independence. Second, membership within international organisations, including those with intergovernmental or other institutions capable of issuing binding directives upon their members, in no way abrogates the independence of states belonging to such organisations. Notwithstanding the political rhetoric surrounding ‘Brexit’, it is trite international law that membership of the European Union in no way affected the political independence of the United Kingdom. Third, domestic constitutional arrangements, even those settled upon under direction from foreign powers, pose no necessary threat to political independence unless the arrangements in question establish unilateral claims of right or, which is worse, general authority over the domestic or foreign affairs of the affected state. As above, the presence or absence of foreign domination, be it formal or de facto, is determinative of independence and not the existence of bilateral or even multilateral commitments amongst juridical equals.
3. Freedom to Choose Political, Social, Economic, and Cultural Systems[edit | edit source]
Contemporary statehood does not require particular forms of government and so does not depend, for example, upon the presence of democratic institutions, the provision of social security, or the separation of church and state. This is stated abstractly within Friendly Relations declaration, and articulated in the following terms by the International Court of Justice in the Nicaragua case:
…adherence by a State to any particular [political] doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State.
The general applicability of this principle is borne out, perhaps, by the fact that United Nations membership does not turn upon, for example, the presence of democratic institutions within the applicant entity. The only nuance to be noted here is that other branches of international law, such as the international law of human rights, can and do regulate the manner in which governance is undertaken. Freedom to choose a political system, to this extent, excludes the freedom to choose one that violates fundamental human rights norms, at least to the extent that the state in question is party to the relevant international human rights law treaties.
4. Permanent Sovereignty Over Natural Resources[edit | edit source]
Established states have exclusive rights to exploit any natural resources falling within their territory, which includes any onshore resources and any located within their territorial sea. This general rule, which arguably sits ‘downstream’ from both territorial integrity and the freedom states enjoy to establish their own economic systems, is most clearly expressed within Principle 21 of the 1972 Stockholm Declaration, which references a state’s ‘sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’. This formulation was also adopted, in slightly modified form, within Principle 2 of the 1992 Rio Declaration. As argued by Sundhya Pahuja, there is some concern that permanent sovereignty over natural resources, which was originally developed to safeguard postcolonial states against foreign economic exploitation immediately following decolonisation, has in fact led to the protection and elevation of the foreign investor as a subject of international law to the expense of domestic populations of those states.
II. Entitlements of Standing[edit | edit source]
If the entitlements listed above cover the rights of states to exercise the capacities ordinarily associated with the term ‘sovereignty’, then the entitlements now at issue protect their position as equal members of the international community. Such entitlements of standing might be conceived as rights to participate on certain terms within the international legal order, and include, amongst other things, principles of sovereign immunity, the law of diplomatic and consular relations, and the immunity of states from the compulsory jurisdiction of international courts and tribunals. Since other chapters in this volume address these elements in greater detail than would be possible here, the remainder of this chapter will focus instead upon two further entitlements of standing: the legal personality of states and their powers both to create and to apply the normative content of international law.
1. Legal Personality[edit | edit source]
Legal personality is the capacity to exist within (legally enforceable) juridical relations: to hold certain rights, duties, powers, liabilities, and so on. The precise relationship between statehood and legal personality has been subject to some controversy. According to Lassa Oppenheim, ‘[t]he equality before International Law of all member-States of the Family of Nations is an invariable quality derived from their international personality’. This order of derivation – that is, the entailment of sovereign equality from legal personality – is, in the view of the present author, highly misleading. Properly construed, legal personhood is a consequence of statehood and not its logical antecedent.
The fact that legal personality follows from statehood (and not the other way around) is best demonstrated by the direction of analysis adopted in the Reparation for Injuries advisory opinion, in which the International Court of Justice grounded the legal personality of the United Nations upon an enquiry into nature and function of that organisation. Importantly, within the context of identifying whether or not the United Nations had personality sufficient to bring a claim for damage done to that organisation, the Court characterised the undoubted capacity of states to bring analogous claims as being facilitative of consensual dispute resolution ‘…between two political entities, equal in law, similar in form, and both the direct subjects of international law’. The essence of states, in other words, as ‘political entities’ equally subject to international law, is what grounds their legal personality (which, after all, consists in little more than the capacity to hold rights and duties such as those at issue in the opinion itself).
2. The Powers to Create and Apply International Law[edit | edit source]
Other chapters within this volume canvass the sources of international law in greater detail than can be attempted here. Nonetheless, it is worth noting that, in one sense at least, statehood itself sits ‘upstream’ from the principles that govern, for example, the creation and application of international treaties and customary international law. Whether or not states are the only entities capable of creating and applying international law, they remain crucially important institutions for law creation and application within the global legal order. Treaties, for example, are almost always created by states and, at least under ordinary circumstances, cannot bind states which are not party to them. Moreover, the practice and opinio juris that generates customary international law is ‘state-generated’, such that discovery of those elements turns, at least nominally, upon our ability to discern states from other things.
Fortunately, none of this creates insuperable difficulties because the statehood of most entities within the international community is reasonably clear. The point, for present purposes, is that statehood itself imparts these important ‘jurisgenerative’ capacities, meaning that important normative questions arise surrounding the authority and legitimacy of state-made international law. According to some scholars, international law should differentiate between states when it comes to their impact upon international law making and application. Suggestions include, for example: that democratically legitimate states should have to consent to putative international norms before those norms become opposable against them, whilst non-democratic states should have no such option; and that states which fail routinely to observe fundamental human rights principles should have their jurisgenerative capacities suspended or curtailed. Whatever the merits of these views in normative terms, they do not reflect contemporary international doctrine, which makes no such discriminations.
Further Readings[edit | edit source]
- Charpentier, Jean, Le Reconnaissance Internationale et L’Evolution du Droit des Gens (A Pedone 1956).
- Chen, Ti-chaing, The International Law of Recognition, with Special Reference to Practice in Great Britain and the United States (Frederick A Praeger 1951).
- Crawford, James, The Creation of States in International Law (OUP 2006).
- Duurmsa, Jorri, Fragmentation and the International Relations of Micro-States: Self-Determination and Statehood (CUP 1996).
- Green, Alex, Statehood as Political Community: International Law and the Emergence of New States (CUP 2023).
- König, Carolin Small Island States & International Law The Challenge of Rising Seas (Routledge 2023).
- Lauterpacht, Hersch, Recognition in International Law (CUP 1947).
- Marek, Krystyna, Identity and Continuity of States in International Law (Librairie E. Droz 1954).
- P O’Connell, Daniel, The Law of State Succession (CUP 1956).
- Reus-Smith, Christian, The Moral Purpose of the State: Culture, Social Identity, and Institutional Rationality in International Relations (Princeton UP 1999).
- Simpon, Gerry, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (CUP 2009).
- Vidmar, Jure, Democratic Statehood in International Law: The Emergence of States in Post-Cold War Practice (Hart Publishing 2013).
Further Resources[edit | edit source]
- Borderline Jurisprudence, Episode 19: Alex Green on Natural Law, Statehood and International Law (7 April 2023).
- Kosovo Thanks You (a live and official record of the foreign recognition received by the Republic of Kosovo).
- Tuvalu, The First Digital Nation (the official site of Tuvalu's new initiative to create a Metaverse proxy for its physical space, in response to sea-level rise).
Conclusion[edit | edit source]
States are some of the most powerful actors within the international legal system. They are also, in a range of other ways, central to the functioning of that normative order. Nonetheless, the idea of statehood remains both complex and contested. Questions persist surrounding the law that governs their creation, continuity, and extinction, as well as their fundamental nature and entitlements. This is, however, hardly surprising. Just as states remain some of the most powerful entities on Earth, so too do they remain some of the most complex. As a result, when approaching the state within international law, the careful student and practitioner is best advised to take these issues one at a time, rather than seeking a one-size-fits-all, ultimate view of what states truly are and how, according to the law that governs international relations, they should be treated.
- Thomas Baty, The Canons of International Law (J. Murray 1930) 1.
- James Crawford, The Creation of States in International Law (OUP 2006) 45.
- Gerard Mangone, A Short History of International Organization (McGraw-Hill 1954) 100.
- Leo Gross, ‘The Peace of Westphalia, 1648-1948’ (1948) 42 American J of International L 20, 26.
- See generally: Christian Reus-Smith, The Moral Purpose of the State: Culture, Social Identity, and Institutional Rationality in International Relations (Princeton UP 1999).
- Andreas Osiander, ‘Sovereignty, International Relations, and the Westphalian Myth’ (2001) 55 International Organization 251, 264-266.
- Percy H Winfield, The Foundations and the Future of International Law (CUP 1942) 18.
- Steven Ratner, The Thin Justice of International Law: A Moral Reckoning of the Law of Nations (OUP 2015) 212, 219; Alex Green, ‘A Political Theory of State Equality’ (draft, on file with author).
- This general position was most famously articulated by Woodrow Wilson, the then President of the United States of America, in a speech to Congress on 8 January 1918, in which he disclosed his ‘Fourteen Points’.
- David Miller, On Nationality (OUP 1995) 19.
- Roger Merino, ‘Reimagining the Nation-State: Indigenous Peoples and the Making of Plurinationalism in Latin America’ (2018) 31(4) Leiden J of International L 773.
- Lassa Oppenheim, International Law, 1st ed. (1905), Vol 1, 264, para.209; 9th ed (1992), Vol 1, 677, para.241
- Security Council Official Records, 340th meeting, 27 July 1948, 29-30.
- Hersch Lauterpacht, Recognition in International Law (CUP 1947) 6, 26-30.
- Crawford (n 2) 5.
- Anne Bayefski (ed.), Self-Determination in International Law: Quebec and Lessons Learned (Kluwer Law International 2000); Julie Dahlitz (ed.), Secession and International Law: Conflict Avoidance—Regional Appraisals (Asser 2003); Marcelo Kohen (ed.) Secession: International Law Perspectives (Cambridge University Press 2006).
- Carolin König, Small Island States & International Law: The Challenge of Rising Seas (Routledge 2023).
- Omitted from discussion here is discussion of the discrete issues arising from the process of formal decolonisation during the latter half of the previous century.
- Jean Charpentier, Le Reconnaissance Internationale et L’Evolution du Droit des Gens (A Pedone 1956) 217-225.
- To this extent, the distinction here differs from the most common distinction between ‘states’ and ‘governments’ within political philosophy, which is that between governance institutions, on the one hand, and governing individuals or groups, on the other. See, for example: Allen Buchanan, Justice, Legitimacy, and Self-Determination: Moral Foundations for International Law (OUP 2004) 281.
- Crawford (n 2) 26.
- See, for instance, Ian Brownlie, Principles of Public International Law, 6th ed (OUP 2003) 89-90.
- Robert Redslob, ‘La reconnaissance de l’état comme sujet de droit international’ (1934) 13(2) Revue de Droit International 429, 430-431.
- Crawford (n 2) 27.
- See, for example: Jure Vidmar, Democratic Statehood in International Law: The Emergence of States in Post-Cold War Practice (Hart Publishing 2013) 238.
- Ratner (n 8) 186.
- Crawford (n 2) 25.
- Alex Green, Statehood as Political Community: International Law and the Emergence of New States (forthcoming, CUP 2022) Chapter 4.
- This explains, for instance, the emergence of Bosnia and Herzegovina, which is generally accepted to have emerged in the absence of effective governmental control, and also the more-or-less uncontroversial statehood of the Principality of Monaco, which for some considerable time lacked important indicators of political independence.
- Alex Green, ‘Successful Secession and the Value of International Recognition’ in Jure Vidmar, Sarah McGibbon, and Lea Raible, Research Handbook on Secession (Edward Elgar 2023).
- See, for example, the arguments and references within: Buchanan (n 17) 266-288.
- Green (n 25) Chapter 3.
- For example: Matthew Craven, ‘Statehood, Self-Determination, and Recognition’ in Malcolm D Evens (ed.), International Law, 4th ed. (OUP 2014) 216-226.
- Deutsche Continental Gas-Gesellschaft v Polish State (1929) 5 A.D. 11, 15.
- Thomas Grant, 'Defining Statehood: The Montevideo Convention and its Discontents' (1998) 37 Columbia Journal of Transnational Law 403.
- The forth Montevideo criterion, the 'capacity to enter into relations with other states' is best viewed as either an element of effective government and political independence or as a legal consequence of statehood, rather than an antecedent of that status.
- Green (n 25) Chapter 3.
- Craven (n 30) 218.
- Benedict Kingsbury, ‘Sovereignty and Inequality’ (1998) 9 EJIL 599, 607.
- Crawford (n 2) 52.
- Nottebohm Case (second phase) (Liechtenstein v. Guatemala), Judgment of April 6th, 1955: I.C.J. Reports 1955, p.4, 23.
- One clear example of this is the Republic of China (Taiwan), which while not formally recognised as a state itself has functioning nationality laws that are recognised by a preponderance of other states.
- Crawford (n 2) 53.
- Acquisition of Polish Nationality, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 7 (Sept. 15).
- Partial Award (Civilian Claims) (Eritrea’s Claims): (2005) 22 ILM 601, 610; 17 December 2004, paras 51, 75-76.
- Security Council Official Records, 3rd year: 383rd meeting, 2 December 1948, Palais de Chaillot, Paris, p.11.
- ‘Identification of Islands and Standardization of Their Names’, submitted by Indonesia to the 11th United Nations Conference of the Standardization of Geographical Names, 8-17 August 2017, E/CONF.105/115/CRP.115 (30 June 2017), p.1.
- Thomas Franck and Paul Hoffman, ‘The Right of Self-Determination in Very Small Places’ (1976) 8(3) New York University J of International L 331, 383-384.
- Jorri Duurmsa, Fragmentation and the International Relations of Micro-States: Self-Determination and Statehood (CUP 1996) 117.
- See, for example: Monastery of Saint-Naoum, Advisory Opinion, 1924 P.C.I.J. (ser. B) No. 9 (Sept. 4) and Question of Jaworzina, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 8 (Dec. 6), both of which assume this point; and North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, p.3, 32 and Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v. Chad), I.C.J. Reports 1994, p.6, 22, which both confirm the point, at least in relation to disputed boundaries.
- Rosalyn Higgins, The Development of International Law Through the Political Organs of the United Nations (OUP 1963) 20.
- General Assembly resolution 273 (III), 11 May 1949; Security Council resolution 70, 4 March 1949.
- Crawford (n 2) 55.
- Ibid 52, 56; Cf Green (n 25) XXX.
- Aaland Islands Case (1920) L.N.O.J. Spec. Supp. No. 3, p.8-9.
- See generally: Thomas Baty, ‘Can an Anarchy Be a State?’ (1934) 28(3) American J of International L 444.
- Crawford (n 2) 59.
- Green (n 25) Chapter 3.
- Vidmar (n 22) 39, 65, 241-242.
- Thomas Kanza, Conflict in the Congo: The Rise and Fall of Lumumba (Penguin Books 1972) 78, 109, 192; General Assembly resolution 1599 (XV), 15 April 1961.
- Security Council resolution 142, 7 July 1960; General Assembly resolution 1480 (XV), 20 September 1960.
- Green (n 25) Chapter 3.
- Crawford (n 2) 71-72.
- Sino-Japanese Dispute – Advisory Committee of the Special Assembly, Resolution of 24 February 1933: LNOJ Sp Supp no 101/1, 87.
- Elsewhere, I have included the presumption in favour of holding independence referendums within these principles, however this proposition is more legally controversial. See: Green (n 25) XXX.
- C.f. Green, Statehood as Political Community, Chapter 4.
- Crawford (n 2) 128-131.
- Status of Transkei Act (1976).
- Status of Bophuthatswana Act (1977).
- Status of Venda Act (1979).
- Status of Ciskei Act (1981).
- Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA 2625 (XXV), Annex, 24 October 1970 (A/RES/25/2625), principle 5.
- I.C.J. Reports 1986, p.14, paras.191-193.
- ‘The participating States will respect the territorial integrity of each of the participating States’.
- See, for example: Statement by Ambassador Martin Kimani, during the Security Council Urgent Meeting on the Situation in Ukraine, 21 February 2022, para 2; Prime Minister’s Statement on Ukraine (United Kingdom), 22 February 2022, HC Deb 22 February 2022, vol 709, col 173; Statement of Mélanie Joly, Minister of Foreign Affairs (Canada), 21 February 2022, Ottawa, Ontario, Global Affairs Canada, para 3.
- Reference re Secession of Quebec, 1998 SCJ No 61, para 155.
- Crawford (n 2) 415.
- I.C.J. Reports 2010, p.403, 436-438, paras.79-81, 84.
- Marko Milanovic, ‘A Footnote on Secession’ EJIL:Talk! (26 October 2017), available at: https://www.ejiltalk.org/a-footnote-on-secession/ [last accessed 28 February 2022].
- Vidmar (n 22) 52-53.
- Crawford (n 2) 330-373. Devolution, in this sense, should not be confused with any internal devolution of governmental power that stops short of granting independent statehood.
- Decree of the President of the Russian Federation, 21 February 2022, No. 71, ‘On the recognition of the Donetsk People's Republic’; Decree of the President of the Russian Federation, 21 February 2022, No. 72, ‘On the recognition of the Luhansk People's Republic’.
- Green (n 25) Chapter 4; Robert McCorquodale, ‘Self-Determination: A Human Rights Approach’ (1994) 43 ICLQ 857, 880.
- BBC Reality Check, ‘Ukraine crisis: Vladimir Putin address fact-checked’ (22 February 2022) available at: https://www.bbc.co.uk/news/60477712 [last accessed 28 February 2022].
- Dispute Relating to Allegations of Genocide (Ukraine v. Russian Federation), Application Instituting Proceedings (Ukraine), 26 February 2022, p 5-6, paras 18-19.
- Jean J.A. Salmon, ‘Naissance et Reconnaissance du Bangladesh’ in: Multitudo legum, ius unum: M´elanges en honneur de Wilhelm Wengler (Interrecht 1973) 478-480.
- Green (n 25) Chapter 4.
- Following the Uniting for Peace resolution (General Assembly resolution 337(V), 3 November 1950), the General Assembly may make recommendations for the adoption of sanctions but cannot, by itself, authorise military action, see: Rebecca Barber, ‘What can the UN General Assembly do about Russian Aggression in Ukraine?’ EJIL:Talk! (26 February 2022), available at: www.ejiltalk.org/what-can-the-un-general-assembly-do-about-russian-aggression-in-ukraine/ [last accessed 28 February 2020].
- See the detailed, if somewhat historical, review of state practice provided by Krystyna Marek in her Identity and Continuity of States in International Law (Librairie E. Droz 1954) 15-126; and also Crawford (n. 2) 671-673, 700-701, 715-717.
- Crawford (n 2) 673-678, 688-690.
- Ibid 715-716.
- For a detailed discussion of this process, see: Vidmar (n 22) 66-111, 117-136, 176-184.
- Daniel P O’Connell, The Law of State Succession (CUP 1956) 3-6.
- James Crawford, Brownlie’s Principles of Public International Law, 8th ed (OUP 2012) 423.
- Arman Sarvarian, ‘Codifying the Law of State Succession: A Futile Endeavour?’ (2016) 27(3) EJIL 789.
- Arnold McNair, The Law of Treaties (OUP 1961) 592, 600-601, 629, 655.
- Robert E Brown (United States v. Great Britain) (1923) 6 R.I.A.A. 120; Redward and Others (Great Britain) v. United States (Hawaiian Claims) (1925) 6 R.I.A.A. 157; Lighthouses Arbitration between France and Greece (France v Greece), Claims No 11 and 4 (1956) 23 I.L.R. 81.
- See generally: Konrad Bühler, ‘State Succession, Identity/Continuity and Membership in the United Nations’ in Pierre Eisemann and Martti Koskenniemi, State Succession: Codification Tested against the Facts (Brill Nijhoff 1997).
- Appeal from a Judgment of Hungaro-Czechoslovak Mixed Arbitral Tribunal (Czechoslovakia v. Hungary), 1933 P.C.I.J. (ser. A/B) No. 61 (Dec. 15), 237.
- Declaration on Preserving Maritime Zones in the Face of Climate Change-related Sea-Level Rise, The Fifty-First Pacific Islands Forum, 6 August 2021 [available online: https://www.forumsec.org/2021/08/11/declaration-on-preserving-maritime-zones-in-the-face-of-climate-change-related-sea-level-rise/, last accessed 09/12/21].
- Kate Pucell, Geographical Change and the Law of the Sea (OUP 2019) 228-229; Carolin König, Small Island States & International Law The Challenge of Rising Seas (Routledge 2023), Chapter 3.
- Alex Green, 'The Creation of States as a Cardinal Point: James Crawford's Contribution to International Legal Scholarship' (2022) 40(1) AYBIL 68: 82-83.
- The Guardian, ‘Vanuatu to Seek International Court Opinion on Climate Change Rights’ (26 September 2021), available at: https://www.theguardian.com/world/2021/sep/26/vanuatu-to-seek-international-court-opinion-on-climate-change-rights (last accessed 21 February 2022).
- Buchanan (n 17) 98-105, 235-238, 247-249.
- Patrick Capps, Human Dignity and the Foundations of International Law (Hart Publishing 2009) 190-196.
- Ibid 260-265; Buchanan (n 17) 263.
- Crawford (n 2) 40-41.
- Ibid 41-42.
- The Case of the S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7).
- Green (n 25); Green (n 8).
- Fernando Tesón, A Philosophy of International Law (Westview Press 1997) 57-66.
- Mortimer Sellers, Republican Principles in International Law: The Fundamental Requirements of a Just World Order (Palgrave Macmillan 2006) 33-37, 95-103.
- They mirror, to this extent, the work of Ronald Dworkin (and others) within domestic/municipal jurisprudence, see: Dworkin, Law’s Empire (Hart Publishing 1986) 56-72, 87-88, 250-256.
- Green (n 8).
- Tesón (n 113).
- Sellers (n 114).
- Kamal Hossain, ‘State Sovereignty and the United Nations Charter’ (MS DPhil d 3227, Oxford, 1964).
- Crawford (n 2) 32.
- John Austin, The Province of Jurisprudence Determined (John Murray 1832) Lecture VI.
- Thomas Hobbes, Leviathan or the Matter, Forme, and Power of a Common-Wealth Ecclesiastical and Civil (Andrew Crooke 1651), Chapter XVII (‘The Definition Of A Common-wealth’).
- Cf. David Dyzenheus, ‘Hobbes and the Legitimacy of Law’ (2001) 20(5) Law and Philosophy 461.
- HLA Hart, The Concept of Law, 2nd ed (OUP 1994) 221.
- On one interpretation, this notion grounded the ruling of the Permanent Court in The Lotus (supra n 111).
- Jan Klabbers, ‘Clinching the Concept of Sovereignty: Wimbledon Redux’ (1999) 3 Australian R of International and European L 345, 348.
- Thomas Aquinas, Summa Theologica, Book 1, Question 25, Article 3.
- Timothy Endicott, ‘The Logic of Freedom and Power’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 246.
- Ibid 246-252.
- Henry Shue, ‘Limiting Sovereignty’ in Jennifer Welsh (ed), Humanitarian Intervention and International Relations (OUP 2004) 16.
- Discussed elsewhere in this volume.
- See, for example: Article 2, Charter of the United Nations (26 June 1945, San Francisco); Benedict Kingsbury, ‘Sovereignty and Inequality’ (1998) 9 EJIL 599, 600; Questions relating to the Seizure and Detention of Certain Documents and Data (Timor‑Leste v. Australia), Provisional Measures, Order of 3 March 2014, I.C.J. Reports 2014, p. 147, paras.26-28; Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), Judgment, I.C.J. Reports 2012, p.99, para.57; and Arrest Warrant of 1 I April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C.J. Reports 2002, p.3, paras.62-71.
- Philip Jessup, ‘The Equality of States as Dogma and Reality’ (1945) 60(4) Political Science Quarterly 527, 528.
- See, for example: Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (CUP 2009); James Crawford, Chance, Order, Change: The Course of International Law, General Course on Public International Law (Brill 2014), Chapter XV; Jack Goldsmith and Eric Posner, The Limits of International Law (OUP 2007).
- In particular, by Gerry Simpson: ‘The Great Powers, Sovereign Equality and the Making of the United Nations Charter’ (2000) 21 Australian Yearbook of International L 133; Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (CUP 2009); ‘Great Powers and Outlaw States Redux’ (2012) 43 Netherlands Yearbook of International L 83.
- Sean Murphy, ‘Democratic Legitimacy and the Recognition of States and Governments’, (1999) 48 ICLQ 545, 556; Gregory Fox and Bradley Roth, ‘Democracy and International Law’, (2001) 27 Rev Intl Studies 327, 337.
- Bertrand Russell, An Inquiry into Meaning and Truth (George Allen and Unwin, 1972) 97-102.
- Thomas Nagel, ‘Personal Rights and Public Space’ (1995) 24(2) Philosophy & Public Affairs 83, 85.
- Green (n 8).
- Focusing upon the consequences of sovereign equality, rather than upon the essence of statehood itself, is sufficient for present purposes but does risk a certain artificiality. Without deeper philosophical reflection, this view may amount only to the tautologous proposition that ‘states are equal in view of their statehood’, which is admittedly rather unhelpful.
- Crawford (n 2) 44-45.
- Green (n 25) Chapter 3.
- Supra n 72.
- Supra n 78.
- Michael Schmitt and Liis Vihul (eds), Tallin Manual 2.0 on the International Law Applicable to Cyber Operations (CUP 2017) 312 (Rule 66); Michael Schmitt, ‘Foreign Cyber Interference in Elections: An International Law Primer, Part I’ EJIL:Talk! (16 October 2020) available at: www.ejiltalk.org/foreign-cyber-interference-in-elections-an-international-law-primer-part-i/ [last accessed 28 February 2022].
- Hossain (n 119).
- Supra n 73 (at p.131).
- Crawford (n 2) 70-71.
- Green (n 25) Chapter 3.
- Supra n 72.
- Judgement, ICJ Rep. 1986 (27 June), p.14, para.263
- Whilst the United Nations Charter frequently uses the word ‘state’ in an idiosyncratic manner – and therefore sometimes may not entail much for the status of the ‘states’ it references – membership decisions pursuant to Article 4(1) broadly reflect the notion that members must be states under international law, see: Higgins (n 46) 11-57.
- Ricardo Pereira, ‘The Exploration and Exploitation of Energy Resources in International Law’ in Karen E Makuch and Ricardo Pereira (eds), Environmental and Energy Law (Blackwell 2012) 199. In addition, states have rights to ‘explore and exploit’ resources located within a contiguous continental shelf and any exclusive economic zone, although the latter two areas remain within international waters. The precise nature of these maritime rights is detailed elsewhere within this volume.
- Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972.
- Rio Declaration on Environment and Development, Rio de Janeiro, 12 August 1992, A/CONF.151/26 (Vol.I)
- Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (cup 2011) 95-171.
- Ratner (n 8) 190-197.
- See, for example: Neil MacCormick, Institutions of Law: An Essay in Legal Theory (OUP 2007) 77-100.
- Lassa Oppenheim, International Law: A Treatise, Hersch Lauterpacht (ed.) (Longman 1947), Vol. I, 238.
- Reparation for injuries suffered in the service of the United Nations, Advisory Opinion: I.C.J. Reports 1949, p. 174, 178-180.
- Ibid. at 177-178.
- ‘Personality’, to this extent, is distinct from ‘personhood’, which is arguably more substantive, see: Ngaire Naffine, ‘Who are Law's Persons? From Cheshire Cats to Responsible Subjects’ (2003) 66(3) MLR 346.
- This phrase is taken from: Robert M Cover, ‘The Supreme Court, 1982 Term - Forward: Nomos and Narative’ (1983) 97 Harvard LR 4.
- See generally: Carmen Pavel, Law Beyond the State (OUP 2021).
- Samantha Besson, ‘State Consent and Disagreement in International Law-Making: Dissolving the Paradox’ (2016) 29(2) Leiden J of International L 289.
- Capps (n 107) 264-268.