You are on page 1of 1

Since 1945 the existence of Staets has provided the basis of the legal order.

Ho
wever, international law provide no satisfactory definition of 'state.'
Legal writers have suggested many definitions of statehood; each of them treats
the elements with various degrees of importance. Franz Von Liszt and Thomas Baty
emphasized that independence and supremacy over territory or sovereignty were i
ndispensible elements of the state.
Hans Kelsen attempted to define the state in terms of law and did not give much
importance to territorial supremacy nor independence. Kelsen viewed the state as
a legal order.
Hersch Lauterpacht and Louis Cavar emphasized territory and population. Effective
control was an important element and that the putative state must show adherence
to minimum international legal standards. They also suggested that internationa
l legality be a prerequisite to statehood.
As international law in the 1970s developed, it became more apparent that intern
ational organs is capable of some aspects of interstate relations. D.P. O'Connel
l emphasized United Nations practice in his definition of statehood. He included
territory and population among the criteria for statehood but noted that there
was no minimum requirement for either. He noted that competence to make treaties
is not unique to states. In contemplating independence as a criterion, he noted
that while the state is not subordinate to any other entity, it is increaasingl
y subordinate to international organizations. Georg Schwarzenberger noted that U
nited Nations practice is an indication of the prevailing view as to what makes
a state; he posited that the "ability to stand by itself" is a prerequisite to s
tatehood. The commonly cited criteria is thus, Independence, Population, Territo
ry, and Governmental Capacity (external and internal).
In defining 'state', while there is an abundance of academic sources, there is a
n absence of legal sources, the only one, being the Montevideo Convention. It pr
oposes four criteria for statehood. The aspiring state must possess a permanent
population, occupy a defined territory, operate an effective government, and dis
play capacity to engage in international relations. While this standard is succi
nt and easy to employ it does not necessarily provide a satisfactory definition
of statehood.
#III
According to James Crawford, the Convention is the best known formulation of the
basic criteria for statehood. It has perhaps been even more frequently cited in
recent years. This may only be a reflection, however, of the lack of a better m
odel rather than the sufficiency of the Convention itself.
The elements of effectiveness, population, and territoriality were enumerated as
a basis for statehood or of sovereignty by many leading publicists of the half-
century leading up to the Montevideo Convention.