PROJECT

TRIMESTER IV

CONSTITUTIONAL LAW-II
THE CONCEPT OF STATE: PRECEPTS, PROBLEMS AND ITS
EVOLUTION

SUBMITTED BY: SUBMITTED TO:

HIMANSHU AHIRWAR MS. KULDEEP KAUR
(2018BALLB88)
 TABLE OF CONTENTS

Introduction ............................................................................................................................................... 4
CONCEPT OF STATEHOOD IN INTERNATIONAL LAW: THEORIES AND THEIR BLIND SPOTS ........................... 5
Opinion by Jurists ..................................................................................................................................... 5
Empirical and Juridical Sense of the word................................................................................................ 5
Definition of State ..................................................................................................................................... 6
Theories of creation of States.................................................................................................................... 6
The Force Theory .................................................................................................................................. 6
The Social Contract Theory .................................................................................................................. 7
The Evolutionary Theory ...................................................................................................................... 7
THE CRITERIA FOR STATEHOOD AND ITS EFFECTIVENESS ............................................................................. 8
Early Doctrine of Statehood...................................................................................................................... 8
PROBLEMS WITH THE IDEA OF STATEHOOD ................................................................................................ 11
Recognition: the great debate.................................................................................................................. 13
Declaratory Theory and its Criticisms .................................................................................................... 15
Constitutive Theory and its Criticisms.................................................................................................... 15
Learning Outcomes ................................................................................................................................. 16
Power as a determinant ........................................................................................................................... 17
The legitimacy of claim under the influence of power ........................................................................... 17
STUDY OF THE CONCEPT OF STATE UNDER DIFFERENT JURISDICTION ........................................................ 18
India ........................................................................................................................................................ 18
Position of the Judiciary...................................................................................................................... 18
USA ........................................................................................................................................................ 19
UK ........................................................................................................................................................... 19
France...................................................................................................................................................... 20
AREAS OF LIMITED STATEHOOD, CONCEPT OF FAILED OR COLLAPSED STATES .......................................... 20
The ‘problem’ with failed and failing states ........................................................................................... 21
Twisting legal and common definitions for political ends? .................................................................... 22
INTERNATIONAL LAW AS A LADDER TO STATE SOVEREIGNTY FOR ASPIRING STATES ................................ 22

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 Recognition Does Not Create a State ...................................................................................................... 22
CONCLUSION ............................................................................................................................................... 23
BIBLIOGRAPHY ............................................................................................................................................ 24
Cases: ...................................................................................................................................................... 25
Books Referred: ...................................................................................................................................... 25
Journals/Articles Referred: ..................................................................................................................... 26

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Introduction
The concepts of statehood and self-determination provide the normative structure on which the
international legal order is ultimately premised. As a system of law founded upon the issue of
territorial control, ascertaining and determining which entities are entitled to the privileges of
statehood continues to be one of the most difficult and complex issues.

Statehood is the legal status of a territory under customary international law, and implies the
existence of certain rights and duties inherent in this status.The right of a state to existence has two
aspects: the putative right of an entity to become a state and the right of an existing state not to be
extinguished, or territorially diminished.

There is a debate taking place in the international legal world over whether or not satisfying the
Montevideo criteria alone is enough to be a state or if recognition is also necessary.

Through this research paper an attempt has been made to simplify the concept of state and the
various associated concepts in a modern world. The paper starts about by analyzing the various
theories of eminent jurists and how this concept of modern state has come about.

The paper in order to be comprehensive and unbiased has taken into account the concept of state
in various jurisdictions. The study of various jurisdictions is helpful in ascertaining the various
ideologies that have gone into shaping this concept of statehood which is quite imperative in the
global affairs. The paper also analyses what constitutes a failed/collapsed state and the
international power play that is deployed in the grant of statehood. To illustrate the aforementioned
mentioned point the paper takes into account certain recent examples from the international affairs
of various countries.

Finally, the paper explains that there is no right in international law to come into existence as a
state. Although the existence of a state is marked by its territorial imperative- or perhaps because
of that states can sometimes exist, either wholly or partly, as legal fictions.

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 CONCEPT OF STATEHOOD IN INTERNATIONAL LAW: THEORIES AND THEIR BLIND SPOTS

Opinion by Jurists

The concept of the State has figured as the central theme of traditionalpolitical theory. R.G. Gettel
defined political science as 'the science of thestate', while J.W. Garner claimed that 'political
science begins and ends withstate'. In modern political theory, the significance of the concept of
the statehas been fluctuating. It is significant that though some sort of politicalorganizations have
existed since ancient times, such as, Greek City States andthe Roman Empire, yet the concept of
the 'state' as such is comparativelymodern. Machiavelli expressed his idea as, "the power which
has authorityover man". This was an important idea because it describes the nature of theState, not
the end of the State. According to Weber, a famous Germansociologist, "A State is a human
community that successfully claims themonopoly of the legitimate use of physical force within a
given territory".1

Etymologically the term is an abstract one which has reference to thatwhich is fixed or established.
Thus, one speaks of the "state" of a man's health,of his mind, or of his economic condition. The
etymological connotation doesnot therefore correspond to the meaning of the word as a term of
politicalscience. Unfortunately, like many other words of common usage in theliterature of
political science and law, it is sued in various senses. Thus it isoften employed as a synonym of
nation, society, country, government etc.2

Empirical and Juridical Sense of the word

The word state has both an empirical and a juridical sense, i.e., entitiescan be states either defacto
or dejure or both. Empirically (de facto), an entity isa state if, as in Max Weber's influential
definition, it is that organization thathas a 'monopoly on legitimate violence' over a specific
territory. Such anentity imposes its own legal order over a territory, even if it is not
legallyrecognized as a state by other states (e.g., the Somali region of Somaliland).Juridically

International legal personality gives an entity legal rights and duties which can be enforced before
an international or municipal tribunal.3 The classical era of international law4 was dominated by
the positivist view that States were the exclusive legitimate legal persons on the international
plane.5 This system is said to date back to the Treaty of Westphalia in 1648 and the shift to a
system of sovereign states regulating their relations with each other.6 States, as the principal legal

1
Gauba, O.P.; An Introduction to Political theory, 4 Edition, Macmilian India Ltd., 2003, pp. 115-116
2
Garner, J.W.; Political Science and Government, Calcutta - The World Press Pvt. Ltd., p. 44.
3
O’Brien, J (2001) International Law (Cavendish Publishing Limited), p.138
4
Normally the classical period is considered by writers to be the period prior to 1914; O’Brien, J (2001) International
Law (Cavendish Publishing Limited), p. 137.
5
O’Brien, J (2001) International Law (Cavendish Publishing Limited), p. 137
6
The Treaty of Westphalia of 1648 brought the Thirty Years' War to an end. It is broadly accepted that the Treaty
defined the principles of state sovereignty, exclusive territoriality, legal equality, non-intervention, standing diplomacy
and international law. Thus, establishing the early modern system of states; Teschke, B, ‘Theorizing the Westphalian

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person of international law, have original personality as aninherent attribute of statehood. This
means that they have absolute competence and total rights and duties recognised by international
law. However, what is considered to be a state is not as clear.

Definition of State

Bluntschlisays,"The state is the politically organized people of a definite territory".

Esmein,regarding it from the point of view of the jurist, defines the state as "thejuridical
personification of a nation". Carre de Malbergdefines the stateconcretely as "a community of men
fixed on a territory which is their own andpossessing an organization firom which results, for the
group envisaged in itsrelations with it members, a superior power of action, of command, and
ofcoercision."7

It may be summed up as "a state is a political association with effectivedominion over a geographic
area. It usually includes the set of institutions that claim the authority to make the rules that govern
the people of the society inthat territory, though its status as a state often in part on being
recognized by anumber of other states as having internal and external sovereignty over it.
Insociology and political science, the state is normally identified with theseinstitutions: in Max
Weber's influential definition, it is that organization thathas a "monopoly on the legitimate use of
physical force within a giventerritory", which may include the armed forces, civil service or
statebureaucracy, courts and police.

At the beginning of the twentieth century there were some fifty acknowledged States. Immediately
before World War II there were about seventy-five. By 2005, there were almost 200—to be precise,
192.8 The emergence of so many new States represents one of the major political developments of
the twentieth century. It has changed the character of international law and the practice of
international organizations. It has been one of the more important sources of international conflict.

Theories of creation of States

The Force Theory

There is an old saying that 'war beget the king', and trueto this maxim, the theory of force
emphasizes the origin of the state in thesubordination of the weak to the strong. The advocates of
the theory argue thatman, apart from being a social animal, is quarrelsome by nature. There is

System of States: International Relations from Absolutism to Capitalism’ (2002) European Journal of International
Relations, Vol. 8, p. 6; Bordoni, C, A Crisis of the State? The End of the Post Westphalian Model (12/02/13), Social
Europe Journal, accessed on 26/11/13 through: http://www.socialeurope.eu/2013/02/a-crisis-of-the-state-the-end-of-
post-westphalian-model/
7
Garner, J.W.; Political Science and Government, Calcutta - The World
8
That is to say, 191 UN Members plus the Vatican City. This does not include Taiwan, Palestine or various claimant
entities.

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alsolust for power in him. Both these desires prompt him to exhibit his strength.9Craving for power
and desire for self assertion are, according to the exponentsof this theory, the two primary instincts
of man. In his behaviour and actionsman is governed by these twin forces. The physically strong
man attacked,captured and enslaved the weak. The successful man began to exercise hissway over
a sizeable section and this led to the emergence of clans and tribes.

The Social Contract Theory

Whereas the theory of divine origin of the statepostulates the deliberate creation of the state by
God, the social contract theoryholds that man deliberately created the state in the form of a social
contract.Men got together and agreed upon a contract establishing the state. Hobbes,Locke and
Rousseau are among those who discussed at length the socialcontract theory.10

The Evolutionary Theory

This theory considers the state neither as a divineinstitution nor as a deliberate human contrivance,
it sees the state coming intoexistence as the result of natural evolution. 'The proposition that the
state is aproduct of history', says J.W. Burgess, means that it is a gradual andcontinuous
development of human society out of a grossly imperfect beginningthrough crude but improving
forms of manifestation towards a perfect anduniversal organization of mankind.11

Neither theory of recognition satisfactorily explains modern practice. The declaratory theory
assumes that territorial entities can readily, by virtue of their mere existence, be classified as having
one particular legal status: it thus, in a way, confuses ‘fact’ with ‘law’.12 For, even if effectiveness
is the dominant principle, it must nonetheless be a legal principle. 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.13 And the
declaratory theorist’s equation of fact with law also obscures the possibility that the creation of
States might be regulated by rules predicated on other fundamental principles—a possibility that,
as we shall see, now exists as a matter of international law. On the other hand, the constitutive
theory, although it draws attention to the need for cognition, or identification, of the subjects of
international law, and leaves open the possibility of taking into account relevant legal principles
not based on ‘fact’, incorrectly identifies that cognition with diplomatic recognition, and fails to
consider the possibility that identification of new subjects may be achieved in accordance with
general rules or principles rather than on an ad hoc, discretionary basis.

9
Kapoor, A.C.; Principles of political Science, S. Chand and Co. Ltd., Ram Nagar, New Delhi, 1979
10
Dillon; Introduction to Political Science, D Van Nostrand Co. Inc., Princeton, New Jersey, 1958, p.20
11
Appadorai, A, The Substance of Politics, Madras: Oxford University Press, 1975, p. 36.
12
Lauterpacht, Recognition, 45–50 for an effective critique of the ‘State as fact’ dogma. His dismissal of the
declaratory theory results in large part from his identifying the declaratory theory with this dogma..
13
Kelsen (1929) 4 RDI 613, 613. Waldock (1962) 106 HR 5, 146 correctly describes the problem as a ‘mixed question
of law and fact’.

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Fundamentally the question is whether international law is itself, in one of its most important
aspects, a coherent or complete system of law.14 According to predominant nineteenth-century
doctrine there were no rules determining what were ‘States’ for the purposes of international law;
the matter was within the discretion of existing recognized States.15 The international law of
that period exhibited a formal incoherence that was an expression of its radical decentralization.16

THE CRITERIA FOR STATEHOOD AND ITS EFFECTIVENESS

Early Doctrine of Statehood

It is useful to review the changing opinions on the topic since the seventeenth century. Grotius, for
example, defined the State as ‘a complete association of free men, joined together for the
enjoyment of rights and for their common interest’.17 His definition was philosophical rather than
legal: the existence of States was taken for granted; the State, like the men who compose it, was
automatically bound by the law of nations which was practically identical with the law of nature:
‘outside of the sphere of the law of nature, which is also frequently called the law of nations, there
is hardly any law common to all nations.’18 So the existence of States as distinct subjects of that
universal law posed no problem. Much the same may be said of Pufendorf, who defined the State
as ‘a compound moral person, whose will, intertwined and united by the pacts of a number of men,
is considered the will of all, so that it is able to make use of the strength and faculties of the
individual members for the common peace and security.’19 Pufendorf agreed both with Grotius
and Hobbes that natural law and the law of nations were the same.

By contrast Vitoria, lecturing a century earlier, gave a definition of the State much more legal in
expression and implication than either Grotius or Pufendorf, though one still based on scholastic
argument:

The novel element in this definition is the wide-reaching implications Vattel draws from the notion
of the equality of States, the effect of which is to make each State the sole judge of its rights and

14
Chen, Recognition, 18–19: ‘to argue that a State can become a subject of international law without the assent of the
existing States, it is necessary to assume the existence of an objective system of law to which the new State owes its
being.’ The point is that if the State owes its existence to a system of law, then that existence is not, or not only, a
‘fact’.
15
Oppenheim (1st edn), vol 1, 108, §71; contra (8th edn), vol 1, 126, §71: ‘Others hold the view that it is a rule of
International Law that no new State has a right towards other States to be recognized by them, and that no State has
the duty to recognize a new State … [A] new State before its recognition cannot claim any right which a member of
the Family of Nations has as against other members.’ Cf the heavily qualified statement in the 9th edn, vol 1, 132–3,
§40.
16
The same incoherence has been noted in respect of the legality of war: Lauterpacht, Recognition, v–vi, 4–5; and the
discretionary character of nationality: Brownlie (1963) 39 BY 284, 284; Principles (2nd edn), 73; (6th edn), 69.
Cf Briggs (1950) 44 PAS 169, 172.
17
De Iure Belli ac Pacis (1646), Bk I, ch I, §xiv.
18
Grotius excepts certain regional customs. For discussion of State sovereignty in Grotius see Dickinson, Equality of
States, 55–60; Kennedy (1986) 27 Harv ILJ 1, 5; Tuck, Rights of War and Peace, 82–96.
19
De Iure Naturae et Gentium Libri Octo, Bk VII, ch 2, §13, para 672.

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obligations under the law of nations. Thus, ‘the Law of Nations is in its origin merely the Law of
Nature applied to Nations … We use the term necessary Law of Nations for that law which results
from applying the natural law to Nations …’20 Although the positive law of nations may not, in
principle, conflict with this necessary law, the latter is ‘internal’ to the State while the positive law
is ‘external’, and other sovereigns are only entitled and able to judge the actions of other
independent States by this external standard: ‘A Nation is … free to act as it pleases, so far as its
acts do not affect the perfect rights of another Nation, and so far as the Nation is under merely
obligations without any perfect external obligation. If it abuses its liberty it acts wrongfully; but
other Nations can not complain, since they have no right to dictate to it.’ Here a deduction from
‘sovereignty’ overturns what has previously been held to be the basis of the law of nations. But as
yet, no further deduction is drawn from this independence or sovereignty to deny the juridical
existence of new States; sovereignty is inherent in a community and is thus independent of the
consent of other States: ‘To give a Nation the right to a definite position in this great society, it
need only be truly sovereign and independent …’The link between these earlier views and the
nineteenth-century positivist view of statehood may be illustrated from Wheaton’s
classic Elements of International Law. Under the influence of Hegel,21he came to regard statehood
for the purposes of international law as something different from actual independence:

It will be noted that, although Wheaton reproduces Vattel’s ‘internal/external’ terminology, he

puts it to a different use. For Vattel the ‘internal’ law was the law of nature, the necessary though
imperfect element of the law of nations. Wheaton, having dispensed with the law of nature, means
by ‘internal’ those aspects of the government of a State confined to its own territory and
distinguished from ‘foreign affairs’.22 By Wheaton’s time the positive law of nations was
concerned essentially with the latter; nor could there be any necessary obligations owed to States
by virtue of their mere ‘political existence’. The law of nations was becoming an artificial system
studied in basically consensual areas of inter-State relations such as treaties, diplomatic relations
and commerce. Basic relations between States as such (in particular, the legality of resort to war,
and the very existence and survival of the State) were excluded from its scope.23

20
Introduction, §§6–7 (original emphasis). The ‘necessary Law of Nations’ was thus peremptory, i.e. permanent and
imprescriptible (§9).
21
Grundlinien der Philosophie des Recht, vol VIII; Hegel, Werke (1854) VIII, Pt 3, para 331; cited by Alexander
(1958) 34 BY 176, 195: In Nisbet’s translation the passage reads: ‘The state has a primary and absolute entitlement to
be a sovereign and independent power in the eyes of others, i.e. to be recognized by them. At the same time, however,
this entitlement is purely formal, and the requirement that the state should be recognized simply because it is a state
is abstract. Whether the state does in fact have being in and for itself depends on its content—on its constitution and
condition; and recognition, which implies that the two [i.e. form and content] are identical, also depends on the
perception and will of the other state. Without relations with other states, the state can no more be an actual individual
than an individual can be an actual person without a relationship with other persons. [On the one hand], the legitimacy
of a state, and more precisely—in so far as it has external relations—of the power of its sovereign, is a
purely internal matter (one state should not interfere in the internal affairs of another). On the other hand, it is equally
essential that this legitimacy should be supplemented by recognition on the part of other states … When Napoleon
said before the Peace of Campo Formio “the French Republic is no more in need of recognition than the sun is,” his
words conveyed no more than that strength of existence which itself carries with it a guarantee of recognition, even if
this is not expressly formulated.’ Hegel, Elements (1991), 366–67.
22
Vattel made the same distinction, although it is not developed and is inconsistent with other elements of his work.
For Vattel’s influence see Ruddy, International Law in the Enlightenment, 119–44; Tourmé-Jouannet, Emer de Vattel
et l’émergence doctrinale du droit international classique, 319–40.
23
Thus international law abandoned the ‘just war’ doctrine and left the question whether to wage war to the domestic
jurisdiction of States. Hall, Treatise (8th edn), 82: ‘International law has … no alternative but to accept war,

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One of the most important ways in which principle can give way to pragmatism is through
recognition. This means that a State recognises the other entity as entitled to exercise all
thecapacities of statehood. There are two theories in relation to the consequence of recognition.
One is the declarative theory which sees recognition as affirmation of statehood when the legal
criteria have already been fulfilled.24 This view was codified in Article 3 of the Montevideo
Convention which states that: ‘The political existence of the state is independent of recognition by
the other states.’ Thus, an entity may have a political existence without being recognised as a
sovereign authority. The constitutive theory on the other hand, defines a state as a subject of
international law only if it is recognised as a sovereign state.25 In reality, there is reason to believe
that this theory is the strongest theory as it is next to impossible for a state to survive without
recognition.26 This is owing to the fact that nonrecognition of a potential “State” prevents the entity
from exercising a capacity to enter into legal relations with other states since they decline to do so.
One way in which this can occur is if the entity has attained legal independence unlawfully. For
instance, The Turkish Federated State of Northern Cyprus has been denied statehood by the
Security Council27 due to its independence flowing from the illegal invasion of Northern Cyprus
by Turkish troops in 1974.28 Even though the entity has a permanent population, defined territory
and an effective government, the illegal attainment of factual independence prevents a legal
capacity from arising. Thus it becomes clear that the Montevideo criteria are not sufficient on its
own to establish statehood. However, the significance of non-recognition is disputed, making the
issue as to whether a state exists or not, highly contentious.

Since the inception of the United Nations (UN) and the end of the Second World War, the scope
of international legal personality has expanded to ‘non-State entities.’ Since the Reparations for
Injuries case29 , it has been well established that non-state entities may possess international legal
personality, separate from that of its members. The International Court of Justice (ICJ) found that
the UN had a derived legal personality implied by the UN Charter and the organization’s given
functions, and not merely because it was recognised by Member States alone. Legal personality
must have been intended; otherwise the UN would not be able to carry out its purposes as intended
by its founding members. This point was confirmed in the Advisory Opinion concerning the
Legality of the Use of Nuclear Weapons30 where the ICJ stressed that the legal competence of non-

independently of the justice of its origin, as a relation which the parties to it may set up if they choose, and to busy
itself only in regulating the effects of the relation’; Röling, in Miller and Feindrider, Nuclear Weapons and the Law,
181; Dinstein, War, Aggression and Self-Defence (3rd edn), 71.
24
Recognition is not what creates the State; Wallace, R, Martin-Ortega, O (2013) “International Law” (7th ed.) (Sweet
&Maxwell ), p.76.
25
Klabbers, J (2013) International Law (Cambridge University Press), p. 73.
26
An example of this is Biafra, who proclaimed independence from Nigeria in 1967. However, it was not collectively
recognized by other States and became a part of Nigeria again in 1970; Klabbers, J (2013) International Law
(Cambridge University Press), p. 73.
27
SC Res 541 (1983); SC Res 550 (1984).
28
The occupation and acquisition of territory through the use of force is contrary to Article 2 (4) of the UN Charter
which states: “All members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the
United Nations.”
29
Reparations for Injuries Suffered in the Service of the United Nations I.C.J. Rep. 1949. The case concerned whether
the UN could bring a claim for reparations for injuries suffered by its agents while in service. In order to reach a
decision it had to be established whether the UN had legal personality within the international legal system.
30
Advisory Opinion concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict I.C.J. Rep.
1996

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State entities was governed by the ‘principle of speciality’, meaning that the States can award them
with powers limited to their function.31 Hence, whilst states have original personality allowing
them a general competence and equal capacity under international law, non-state entities only have
personality to the degree necessary for the achievement of their roles within the international legal
system. Thus, the approach taken in relation to legal personality of nonState entities is functional
rather than territorial.

In relation to other types of non-State entities, matters are not as clear. These non-state actors
extend their activities trans-nationally but have their legal origin and basis within national legal
systems. The Red Cross in particular, has a hybrid nature. The organisation is formed under Swiss
law but has the capacity to enter into relations with states and has been given specific competences
through the 1949 Geneva Conventions.32 However, most nonState entities do not have their
competences expressly laid out in a treaty or constituent document. The Holy See is such an entity,
without defined aims and objectives,33 and its functions are exclusively religious. It has derived
legal personality akin to that of statehood34because of States’ willingness to enter into international
relations with it.35Thus, it has alegal capacity due to State recognition of it as having competences
on the international legal arena, even though it is under the territorial sovereign authority of the
Vatican City State. Hence, whether a non-State entity has legal personality, and to what degree, is
highly ambiguous. This is because of the dependence on recognition by States and the fact that
they may possess this capacity regardless of being under the lawful sovereign authority of a State.

PROBLEMS WITH THE IDEA OF STATEHOOD

Firstly, although States remain the main type of legal person, it is unclear whether an entity
qualifies as a State for the purposes of international law. Secondly, during the 20th century other
entities have received legal personality, giving rise to greater uncertainty as to what degree of
personality such non State entities possess.

The functional approach and ‘principle of speciality’ further confuses the issue of legal personality
of non-state entities, as each has a different degree of legal competence. Though it would create
greater certainty, it does not seem to be a workable option that non-State entities should be subject

31
Hence, the ICJ found that The World Health Organisation, as an international organisation under the United Nations,
and specialized in the area of international public ‘health’, would not be awarded the competences of other parts of
the United Nations system
32
Under Article 9 and 10 of the Geneva Convention Relative to the Treatment of Prisoners of War the Red Cross has
been given certain tasks in relation to the protection of prisoners of war; Klabbers, J (2013) International Law
(Cambridge University Press), p. 88
33
Maluwa, T, ‘the Holy See and the Concept of International Legal Personality: Some Reflections’, (1986) The
Comparative and International Law Journal of Southern Africa, Vol. 26, p. 23
34
The Holy See enjoys sovereign privileges and immunities, the ability of recognizing new states and governments,
participation in international conferences, membership in international organisations and a treaty-making capacity;
Maluwa p. 23-24.
35
Wallace, R, Martin-Ortega, O (2013) “International Law” (7th ed.) (Sweet & Maxwell), p 99.

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to a general legal regime.36 This argument is based on their invariable nature specific to their
purpose. Therefore a generalisation cannot be made and requires each to be examined separately.
This shows a need for an alternative approach to international legal personality that reflects the
modern changes in the international community.37 One argument is that international law needs to
depart from the Westphalian model and rather ask which political actors shape the legal processes
and how they do so in order to establish whether they are subjects of international law.38 At present
however, the approach to legal personality is clearly not satisfactorily transparent.

The constitutive theory sets out that it is the recognition of an entity as a State that makes it so.
This theory would explain why “Transnistria” and other similarly situated entities 39are not
considered to be States. This theory, however, fails to explain why certain entities that have
received numerous recognitions as such are not in fact States. It also raises the question of how
many recognitions are necessary in order for an entity to become a State. One clear example of
this problem is the “State of Palestine”. As of July 2011, the Palestinian Liberation Organization
(PLO) was reporting that it had received at least 122 recognitions of its “Statehood”.To put things
in perspective, there are currently 193 members of the UN.That means over half, 63%, of the
United Nations recognizes Palestine as a State. However, not even the PLO’s negotiator’s website
discusses Palestine as if it were already a State.One simple reason for this might be that States
serve a regulatory function in the world. Their function is to administer a portion of the planet
where people live. If they cannot serve that function because they lack authority over a territory or
people on the territory, no matter what you call them, they are not States. This is the case of
Palestine: it has no effective control40of which to speak and therefore cannot, even with
recognition, be a new State. The constitutive theory, like the declaratory theory, therefore would
seem to provide little useful information standing alone on whether an entity is or is not a State.

Arguments can go round and around about the importance of recognition over fulfilling the
Montevideo elements. The question still remains: what is it that makes a State? Articles 3 and 6 of
the Montevideo convention make it clear that the recognition of an entity of as a State is not what
makes it a State. However, even that convention makes room for recognition as an element

Another example of slight deficiency in the Montevideo criteria that has been cured by recognition
is the State of Israel. It would be hard to argue that Israel does not have a government or a
population. However, its territory has been in dispute since the country declared its existence in
1948. International recognition of the State as such though has “cured” this defect in the criteria
for Statehood and Israel has been allowed to join the United Nations and participate in other
international institutions.

36
Hlavkova, M: Meeting summary: Legal responsibility of International organisations in International Law (10/1-/11,
Law Discussion Group at Chatham), p. 5.
37
C Harding and C L Lim: Renegotiation Westphalia (1999, Martinus Nijhoff Publishers) p. 10.
38
Ibid
39
A brief list includes, the Republic of Abkhazia, The Independent State of Azawad, Nagorno-Karabakh Republic,
Turkish Republic of Northern Cyprus and the Republic of Somaliland. They are also all claimed by one or more other
States.
40
Effective control in this sense means, inter alia, the ability to exclude others from using coercion on its territory.

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Recognition: the great debate

Before examining State practice on the matter, it is necessary to refer again to the underlying
conflict over the nature of recognition. A further effect of nineteenth-century practice has been to
focus attention more or less exclusively on the act of recognition itself, and its legal effects, rather
than on the problem of the elaboration of rules determining the status, competence and so on of
the various territorial governmental units.41 To some extent this was inevitable, as long as the
constitutive position retained its influence, for a corollary of that position was that there could be
no such rules. Examination of the constitutive theory is, therefore, first of all necessary.

i. The constitutive theory42

The tenets of the strict constitutive position, as adopted by Oppenheim and others, have been
referred to already. Many of the adherents of that position are also positivist in outlook.43 On the
other hand, it is possible to reconcile the declaratory theory with some versions of positivism, and
many writers have adhered both to positivism and the declaratory theory. Moreover, Lauterpacht,
who was not a positivist, was one of the more subtle proponents of a form of the constitutive
position.44 He expressed the most persuasive argument for that position in the following way:

It should be stressed that this argument is not generally applicable in international law.
Determining the legality of State conduct or the validity of the termination of a treaty often
involves ‘difficult circumstances of fact and law’, but it has never been suggested that the views
of particular States are ‘constitutive’. If individual States were free to determine the legal status or
consequences of particular situations and to do so definitively, international law would be reduced
to a form of imperfect communications, a system for registering the assent or dissent of individual
States without any prospect of resolution. Yet it is, and should be, more than this—a system with
the potential for resolving problems, not merely expressing them..

A second difficulty with the constitutive position is its relativism. As Kelsen points out, it follows
from constitutivist theory that ‘… the legal existence of a state … has a relative character. A state
41
Cf Bot, Non-Recognition and Treaty Relations, 1.
42
Constitutive writers include the following: Le Normand, La Reconnaissance Internationale et ses Diverses
Applications; Jellinek, Allgemeine Staatslehre (5th edn), 273; Anzilotti, Corso di Diritto Internazionale (3rd
edn); Kelsen (1941) 35 AJ 605; Lauterpacht, Recognition; Schwarzenberger, International Law (3rd edn), vol I,
134; Patel, Recognition in the Law of Nations, 119–22; Jennings (1967) 121 HR 327, 350; Verzijl, International Law,
vol II, 587–90 (with reservations); Devine [1973] Acta Juridica 1, 90–145. Hall’s position is of interest: ‘although the
right to be treated as a state is independent of recognition, recognition is the necessary evidence that the right has been
acquired’: International Law (8th edn, 1924, Higgins ed), 103. Cf also the German argument in the Customs Union
Case, PCIJ ser C no 53, 52–3. Schachter argues that Secretariat practice (in one case, the Democratic Republic of
Vietnam in 1947) is implicitly constitutive: 25 BY(1948) 91, 109–15. This is doubtful. It is also argued that the
Permanent Court adopted a constitutive position in Certain German Interests in Polish Upper Silesia, PCIJ Ser A No
7 (1926), 27–9, but this was in the context of the belligerency of the Polish National Committee, not the existence of
Poland as a State.
43
Lauterpacht, Recognition, 38–9; but cf Jaffé, 80–1.
44
Lauterpacht, Recognition, 2 distinguishes two assertions of orthodox constitutive theory: viz ‘that, prior to
recognition, the community in question possesses neither the rights nor the obligations which international law
associates with full statehood; [and] … that recognition is a matter of absolute political discretion as distinguished
from a legal duty owed to the community concerned.’ He adopts the first but not the second of these. In fact neither is
distinctly positivist: what is so is their combination. cf Kunz (1950) 44 AJ 713; Higgins, Development, 136.

Page | 13
exists legally only in its relations to other states. There is no such thing as absolute existence.’45 No
doubt international relations are full of contingency, but to those who do not share Kelsen’s
premises this seems a violation of common sense.46 Lauterpacht, who accepts the relativity of
recognition as inherent in the constitutive position, nevertheless refers to it as a ‘glaring
anomaly’, a ‘grotesque spectacle’ casting ‘grave reflection upon international law’. Moreover, in
his view ‘it cannot be explained away … by questionable analogies to private law or to
philosophical relativism.’But if a central feature of the constitutive position is open to such
criticism the position itself must be flawed.

Aside from other objections, Lauterpacht’s own position is dependent on a straightforward

assertion about State practice:

… much of the available evidence points to what has here been described as the legal view of
recognition. Only that view of recognition, coupled with a clear realization of its constitutive effect,
permits us to introduce a stabilizing principle into what would otherwise be a pure exhibition of
power and a negation of order …

But State practice demonstrates neither acceptance of a duty to recognize, nor a consistent
constitutive view of recognition. Moreover, Lauterpacht’s argument, which in the passage cited
was plainly de lege ferenda, assumes the insufficiency of the declaratory view of recognition.

ii. The declaratory theory

According to the declaratory theory, recognition of a new State is a political act, which is, in
principle, independent of the existence of the new State as a subject of international law. In
Charpentier’s terminology, statehood is opposable to non-recognizing States. This position has the
merit of avoiding the logical and practical difficulties involved in constitutive theory, while still
accepting a role for recognition as a matter of practice. It has the further, essential, merit of
consistency with that practice, and it is supported by a substantial body of opinion. The following
passage of Taft CJ’s in the Tinoco Arbitration47 is frequently cited as the classic statement of the
declaratory position:

The non-recognition by other nations of a government claiming to be a national personality, is

usually appropriate evidence that it has not attained the independence and control entitling it by
international law to be classed as such. But when recognition vel non of a government is by such
nations determined by enquiry, not into its de facto sovereignty and complete governmental
control, but into its illegitimacy or irregularity of origin, their non-recognition loses something of
evidential weight on the issue with which those applying the rules of international law are alone
concerned . Such non-recognition for any reason cannot outweigh the evidence disclosed as to
the de facto character of Tinoco’s government, according to the standard set by international law.

45
Kelsen (1941) 35 AJ 605, 609. On Kelsen’s position see Pauly, in Diner and Stolleis (eds), Hans Kelsen and Carl
Schmitt, 45, 46–7
46
Cf Verhoeven, Reconnaissance, 714–15. Kelsen himself was previously a declaratist: (1929) 4 RDI 613, 617–18
47
Tinoco Claims Arbitration (Great Britain v. Costa Rica) 1 U.N. Rep. Int’l Arb. Awards 369 (1923)

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But this was a case of recognition of governments, and it is arguable that while recognition of
governments may be declaratory in effect, recognition of new States goes further. Where an
authority in fact exercises governmental functions within an area already accepted as a State, there
seems to be nothing for recognition to constitute, at least at the level of international personality.
But the establishment of a new State involves the demarcation of a certain area as a ‘State-area’
for the purposes of international relations, with consequent legal effects. In such a case it might be
argued that recognition, at least in the non-formal sense of ‘treating like a State’, is central rather
than peripheral to international capacity.

Among writers the declaratory doctrine, with differences in emphasis, predominates. Brownlie
states the position succinctly: ‘Recognition, as a public act of state, is an optional and political act
and there is no legal duty in this regard. However, in a deeper sense, if an entity bears the marks
of statehood, other states put themselves at risk legally, if they ignore the basic obligations of state
relations.’

Declaratory Theory and its Criticisms

The declaratory theory looks to the purported state’s assertion of its sovereignty within the territory
it exclusively controls to determine if it can access the international plane. Recognition should be
automatic based on specified criteria because the status of statehood is based on fact, not on
individual state discretion.48 The majority of contemporary scholars and commentators favor this
theory.49 However, there are criticisms of this theory. State practice may not support it. States also
do not acquire international rights on the international plane until they are recognized. The fact
that recognition vests recognized states with rights changes the expectations on the state and may
encourage choices that are more conducive to peace. In addition, the declaratory theory may
undermine the principle that international law is the law made by states. Even if the theory were
not, in itself, objectionable on this ground and was followed unanimously by states, other
difficulties with the theory include the selection of the criteria to apply, the instability and
unpredictable nature of competing versions of criteria, the application of those criteria, the
hypocrisy in applying different criteria to different states, and the legitimacy of some proposed
criteria. These issues may lead one to wonder whether the declaratory theory constrains the
discretion of states to an appreciable degree.

Constitutive Theory and its Criticisms

The constitutive theory states that recognition is not automatic. Rather, it is based on the discretion
of other states. Moreover, only upon recognition by those other states does the new state exist, at
least in a legal sense. Some practice in contemporary situations may evidence the application of
the constitutive theory rather than the declaratory.50 Numerous classical scholars have weighed in

48
See generally Martha J. Peterson, Recognition Of Governments: Legal Doctrine And State Practice, 1815-995
(1997)
49
See generally JAMES L. BRIERLY, THE LAW OF NATIONS: AN INTRODUCTION TO THE
INTERNATIONAL LAW OF PEACE (Humphrey Waldock Ed., 6th Ed. 1963)
50
See, e.g., Martii Koskenniemi, The Place of Law in Collective Security, 17 MICH. J. INT’L L. 455, 469 n.54 (1996)
(finding a “resuscitated ‘constitutivist’ approach to the recognition of states”).

Page | 15
support of the constitutive theory.51 Many modern scholars are beginning to reexamine the
constitutive theory, considering whether it provides a firmer foundation for the determination of
statehood status. The constitutive theory, however, also has its criticisms. Many states and scholars
assert that the declaratory theory, not the constitutive theory, predominates in practice. There is no
evidence to suggest that states regard unrecognized states as terra nullius. Thus, there must be
some international legal personality in the territory concerned that does not lapse or that predates
statehood. Regardless of international recognition, a purported state might exercise state authority
over its residents without regard to the position of other states, even if the other states do not
believe the purported state fulfills the criteria for statehood. From a theoretical point of view, the
constitutive theory is not attractive in that it permits states to ignore the facts, i.e. the existence of
a state, acting as such and acknowledged as such by the nationals and perhaps neighbors thereof.
There is a need for the law to reflect facts, and any other conclusion results in the assignment of
recognition to the purely political process rather than a justiciable rights-based process. This
objection to the theory is compounded by the constitutive theory’s subjective nature and potential
inconsistency with other states’ determinations, resulting in uncertainties about which entities may
be universally regarded as states. Further, on an ethical level, it is questionable whether other,
existing states should be the gatekeepers to the international plane. Some have argued that the
declaratory theory emerged because of objections to the discretion of states, as well as a principled
acknowledgment of the role of self-determination.

Learning Outcomes

It is sometimes suggested that the ‘great debate’ over the character of recognition has done nothing
but confuse the issues, that it is mistaken to categorize recognition as either declaratory or
constitutive in accordance with some general theory. According to Brownlie:

But this does not mean that recognition does not have important legal and political
effects. Recognition is an institution of State practice that can resolve uncertainties as to status and
allow for new situations to be regularized. That an entity is recognized as a State is evidence of its
status; where recognition is general, it may be practically conclusive. States, in the forum of the
United Nations or elsewhere, may make declarations as to status or ‘recognize’ entities the status
of which is doubtful depending on the degree of unanimity and other factors this may be evidence
of a compelling kind. Even individual acts of recognition may contribute towards the consolidation
of status: in Charpentier’s terms, recognition may render the new situation opposable to the
recognizing State.

The conclusion must be that the status of an entity as a State is, in principle, independent of
recognition, although the qualifications already made suggest that the differences between
declaratory and constitutive schools are less in practice than has been depicted. But this conclusion
assumes that there exists in international law and practice workable criteria for statehood. If there
are no such criteria, or if they are so imprecise as to be practically useless, then the constitutive
position will have returned, as it were, by the back door.

51
See, e.g., 1 LASSA OPPENHEIM, INTERNATIONAL LAW §§ 71, at 125 (Hersch Lauterpacht ed., 8th ed., 1955)
(“A State is, and becomes an International Person through recognition only and exclusively.”); Hersch Lauterpacht,
Recognition of States in International Law, 53 YALE L.J. 385, 419 (1944) (describing “[t]he orthodox constitutive
view which deduces the legal existence of new States from the will of those already established”).

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Power as a determinant

One can see how power, when utilised, can affect statehood. But in what specific ways can power
deter or marginalise claims to statehood? How are declarations and recognitions of entities as states
subject to the influence of power? And finally, in the face of the magnitude of power, can
legitimate claims to statehood become a reality? The following sections will examine these issues.
One should start with what constitutes as a legitimate claim to statehood, because then one can
ascertain how power affects such claims.

The legitimacy of claim under the influence of power

If statehood is a claim, in order for the claim to be realised as a right, the claim must be legitimate.
Indeed, only legitimate claims are rights, meaning legitimacy is a prerequisite to the realisation of
rights (in this case, the right to statehood). A right is defined as “a justified claim on someone, or
some institution, for something which one is owed”52. As a consequence, the right to statehood is
a right that can only be realised after the fulfilment of certain “criteria”, such as the legitimacy (or
justification) of the claim made in relation to statehood. What then, constitutes as a legitimate
claim to statehood, and in what ways are these claims made? Firstly, an understanding of the
concept of legitimacy must be made. Legitimacy entails justification; for example, one is justified
to do something if there is something that supports this action. It is my view that something can be
rendered legitimate when it is supported by the law, ideology (such as Zionism in the case of
Israel), actors, and eventually, power. “Power and legitimacy are not antithetical, but
complementary.”53 It can be discerned that politics, power, and legitimacy are closely linked:
“Politics is not merely a struggle for power but also a contest over legitimacy, a competition in
which the conferment or denial, the confirmation or revocation, of legitimacy is an important
stake”54 In regards to statehood, politics and differences in power may have repercussions on
legitimacy, an “important stake” for the realisation statehood. Legitimating factors can be found
within the legal and extra legal. Where are these factors found in international law regarding
statehood? The right to self-determination is a legitimating factor that resonates around
international law. The UNDHR, UNCH, ICCPR, and ICESCR, are all international law documents
that were influenced by or products of this principle. These documents reinforce that the human
right of self-determination by “all peoples”, can be claimed by everyone; without distinction. Thus,
the right to self-determination poses should pose as a legitimate claim to statehood. The word
“peoples” entails a broad spectrum for application. This right should not be contextspecific;
theoretically, any nation can claim this right. As a result, this right has been claimed by both sides
of the Israeli-Palestinian conflict. But it has only been realised by one side of them. Are there other
grounds of legitimacy that have made this so?

52
B. Orend, Human Rights: Concept and Context, Broadview Ltd, Canada,2002, p17
53
7 L.I Claude Jr, “Collective Legitimization as a Political Function of The United Nations” International
Organizations, vol. 20, issue 3,pps 367-379,p 368
54
L.I Claude Jr, ,p 368

Page | 17
 STUDY OF THE CONCEPT OF STATE UNDER DIFFERENT JURISDICTION

India

It was for the first time since the inception of the Indian state, that the Supreme Court was asked
to formulate criterions to define “State”. This terminology was first used by Justice VS
AyyarRajmannar in The University of Madras v. Shanta Bai, in 1951, where he suggested that this
term could be used for defining different bodies as the state only if they performed activities that
could be termed as synonymous with government functions.55

This phrase thus took into account anything that could be termed as “sovereign function” or any
allied activity. It was not precise and included a great deal of subjectivity depending on the judges’
discretion. It is to be noticed that it is relatively a narrow term and was subsequently rejected in
the Rajasthan Electricity case 56but was later used by Justice Alagiri Swami in his dissenting
opinion in Sukhdev v. Bhagatram as he defined “sovereign functions”57

This term this was not widely recognized in Indian courts while dealing with the definition of the
state. It can be attributed to the fact that this phrase is narrow and does not deal with the
components that constitute a state in a wide manner.

In 1981, Justice Bhagwati set six parameters for defining “public service”58-

1. Whether the entire share capital is controlled by the government?

2. Whether financial assistance by the government is said to constitute almost the full
expenditure incurred?
3. Whether the corporation enjoys any kind of monopoly that has been allotted or protected
by the state?
4. Whether there is deep and pervasive state control?
5. If the functions of the body are of public importance and are closely related to
governmental duties?
6. If there has been any transferring of any department of the government to this body?

There is a major fault line with this concept. It does not clarify if these functions work
cumulatively, individually or in some sets or combinations. It is thus not precise and requires
judges to decide at their discretion about availability or non-availability of some of these criterions.

Position of the Judiciary

It was an issue of great debate if the judiciary should also be termed as a part of “state”. Since the
independence of the judiciary from the other two wings of the state is also necessary to ensure its
transparency and accountability, in the landmark case of Naresh Shridhar Mirajkar v. State of

55
The University of Madras v. Shanta Bai, AIR 1954 Mad 67
56
Rajasthan State Electricity Board v. Mohan and Ors. 1967 AIR 1857
57
Sukhdev v. Bhagatram AIR 1975 SC 1331
58
Ajay Hasia Etc vs Khalid Mujib Sehravardi & Ors 1981 AIR 487

Page | 18
Maharashtra,59 it was said that only administrative functions of the court can be termed as a state
but not the judicial functions. This allows the judiciary to maintain its rightful autonomy from the
state and thus allow independence in action, at least in theory.

USA

A state is a constituent political entity of the United States. There are currently 50 states, which
are bound together in a union with each other. Each state holds governmental jurisdiction over a
defined geographic territory and shares its sovereignty with the United States federal government.
Due to the shared sovereignty between each state and the federal
government, Americans are citizens of both the federal republic and of the state in which
they reside.60 State citizenship and residency are flexible, and no government approval is required
to move between states, except for persons restricted by certain types of court orders
(e.g., paroled convicts and children of divorced spouses who are sharing custody). Four states use
the term commonwealth rather than state in their full official names.

States are divided into counties or county-equivalents, which may be assigned some local
governmental authority but are not sovereign. County or county-equivalent structure varies widely
by state, and states may also create other local governments. State governments are allocated
power by the people (of each respective state) through their individual constitutions. All are
grounded in republican principles, and each provides for a government, consisting of three
branches, each with separate and independent powers: executive, legislative, and judicial.61

UK

The UK is not a unitary state because it depends on two constitutional contracts — the Acts of
Union of 1707 and 1800. Therefore, UK Unionism is not like, for instance, French Jacobinism.
The 1707 Acts are still in force. Although most of Ireland left the UK in 1921, the 1800 Act has
profoundly affected UK politics. Northern Ireland is the relic of the 1800 Act. Neither is the UK a
federal state. Scotland and Northern Ireland do not have powers comparable to an American or an
Australian state. Therefore, UK Unionism is not like Australian anti-federalism. When there have
been subordinate parliaments (Northern Ireland 1921-72 and intermittently since 1999; Scotland
and Wales since 1999),

The United Kingdom consists of four countries: England, Northern Ireland, Scotland, and Wales.62
Their capitals are London, Belfast, Edinburgh, and Cardiff respectively. Apart from England, the
countries have devolved administrations, each with varying powers. The nearby Isle of Man,
Bailiwick of Guernsey and Bailiwick of Jersey are not part of the UK, being Crown dependencies
with the British Government responsible for defence and international representation. The
medieval conquest and subsequent annexation of Wales by the Kingdom of England, followed by
59
Naresh Shridhar Mirajkar v. State of Maharashtra1966 SCR (3) 744
60
Erler, Edward. "Essays on Amendment XIV: Citizenship". The Heritage Foundation. Archived from the original
on July 24, 2017. Retrieved January 12, 2016.
61
"Frequently Asked Questions About the Minnesota Legislature". Minnesota State Legislature. Archived from the
original on October 21, 2013. Retrieved January 12, 2016.
62
"Countries within a country". Prime Minister's Office. 10 January 2003. Archived from the original on 9 September
2008. Retrieved 8 March 2015.

Page | 19
the union between England and Scotland in 1707 to form the Kingdom of Great Britain, and the
union in 1801 of Great Britain with the Kingdom of Ireland created the United Kingdom of Great
Britain and Ireland. Five-sixths of Ireland seceded from the UK in 1922, leaving the present
formulation of the United Kingdom of Great Britain and Northern Ireland. There are fourteen
British Overseas Territories, the remnants of the British Empire which, at its height in the 1920s,
encompassed almost a quarter of the world's land mass and was the largest empire in history.
British influence can be observed in the language, culture and legal systems of many of its former
colonies.

France

The 1789 revolution was an uprising by the nation against the royal state. Overnight the
revolutionaries seized the state of l'Ancien Régime and transferred the concept of sovereignty from
the monarch to the nation. In that moment the nation was elevated to the condition of statehood.
The nation became a state and the state became the embodiment of the nation. The two concepts
became totally fused.

This declaration comes neither from abbéSièyes, the theorist of the importance of the Third Estate,
nor from Rousseau, but from the then Socialist Minister of Defense, Jean-Pierre Chevènement,
who wrote the above words in 1988 in the Socialist periodical République, The words are in line
with republican Jacobinism. Characteristic of Jacobin theory, as it developed during the
Revolution, is the emphasis on 1) indivisible national sovereignty, 2) the role of the state as a
transformer of society, 3) administrative centralization, 4) the equality of citizens which is to be
secured through equal legal rights, and 5) uniform education for individuals to ensure a uniform
political concept of the citizen.

The necessity of upholding a powerful state and an indivisible, sovereign, and public authority
thus is supposed to prevent the nation from fragmentation into particular interests. The idea of the
active citizen who is the nation cannot exist without the strong state. The state thus becomes the
guarantor of the national political identity. The unification of state and nation implies that the
citizens endorse the same set of political values. They constitute a uniform mass. This
revolutionary concept of citizen heralded the transition from a society which rested on differences
in privilege, to a contractual society which exists between the state and the nation where the
individual is no longer at the mercy of destiny but can shape his or her own future based on
deliberate and voluntary support of a legal society. The individual choice of a national citizenry,
therefore has nothing to do with ethnic, cultural or biological criteria. It is a choice determined by
will expressed in the famous word of Ernest Renan: "The existence of a nation is a daily plebiscite"
(1882).

This is the ideal concept of the political state-nation, but this concept is linked to another concept,
that of "patrie" (country), which makes the relation between politics, nationality and emotional
affiliation much more complex.

AREAS OF LIMITED STATEHOOD, CONCEPT OF FAILED OR COLLAPSED STATES

Page | 20
The concept of ‘failed’ States is a category that originated in international relationsand gained
prominence in 1993 with the article ‘Saving Failed States’ by Helman andRatner.63There is no
clear or standard definition of what is a ‘failed’ State.64Generally, the expression ‘failed State’ is
used when ‘the public authority, the power of a State,has completely broken down.’65 Moreover,
different terms are used by differentauthors to refer to similar or the same situation: ‘collapsed’
States, ‘crumbling’ States,‘imploding’ States, ‘eroding’ States, ‘disintegrating’ States,
‘dysfunctional’ States,‘fractured’ States, ‘disoriented’ States and ‘troubled’ States, as well as
‘weak’ Statesare all found in the specialized literature.66 Sometimes, not only the terms ‘failed’or
‘collapsed’ State are used, also the terms ‘failing’ and ‘collapsing’ are employed;depending on the
circumstances, ‘the latter designation may or may not be a manner of indicating that the state in
question is going downward, but has not yet reached the bottom.’The origin of ‘failed’ States is
often considered to be the decolonization process of the 1960s, when the application of the
principle of self-determination of peoples as defined by the UN General Assembly produced a
large number of new States that lacked the capacity to govern themselves.67 Indeed, decolonization
did not necessarily coincide with institution-building processes’, a phenomenon whose ‘emphasis
[laid] on the immediate independence of states.’ In this regard, therigid application of the
utipossidetis rule as a heritage of the colonization era hasbeen pointed out as a major cause.68

The ‘problem’ with failed and failing states

If we are to believe Foreign Policy Magazine’s Index of Failed States, there are perhaps up to sixty
of them in the world today. While the likes of Somalia and Afghanistan are on this list, from a
legal perspective there is a problem: there is no generally recognized definition of what constitutes
a failed state. This definitional vacuum has inevitably led to polarized interpretations of this
political condition. One characterization that seems to carry some weight, however, is Daniel
Thürer’s, in which 'state failure' involves the implosion of structures of power and authority, a
collapse of law and order and the absence of institutions capable of representing the state. In short,
a failed state "though retaining legal capacity, has, for all practical purposes, lost the ability to
exercise it.” Note the emphasis on capacity over substance here. Implicit in the emphasis is the
conviction that you don’t dis-invent states. They do not necessarily cease to exist if they largely
cease to function. In fact, there are few (if any) international legal mechanisms in place by which
a state can be extinguished.

There are multiple reasons for privileging form over substance, to include maintaining easily
identifiable borders and populations. In a globalizing world, however, there is also the potential

63
Helman, G. B. and S. R. Ratner . ‘Saving Failed States’. 89 Foreign Policy, (1992-3), pp. 3-20.
64
Geiss, R. ‘Failed States. Legal Aspects and Security Implications’. 47 German Yearbook of International Law
(2005), p. 458.
65
Classen , C. D. ‘“Failed States” and the Prohibition of the Use of Force’. In Société Française pour le
DroitInternational. Journée Franco-allemande: Les Nouvelles Menaces contre la Paix et la Sécurité Internationales.
New Threats to International Peace and Security. Paris: Pedone, 2004, p. 129.
66
Advisory Council on International Affairs of the Netherlands. Advisory Report No. 35: Failing States. A Global
Responsibility (May 2004), p. 9. Available at: http://www.aiv
advies.nl/ContentSuite/template/aiv/adv/collection.asp?id=1942&language=UK
67
UN General Assembly Res. 1514 (XV) of 14 December 1960, para. 3.
68
Geiss, R. ‘Failed States. Legal Aspects and Security Implications’. 47 German Yearbook of International Law
(2005), p. 458.

Page | 21
problem of contagion. The disorder and sheer entropy of a failed state can spread to its neighbors
and eventually the wider region. Because of this possibility, those outside its borders frequently
feel compelled to act. The rub, of course, is that attempts to stabilize or prop up failed states will
almost invariably collide with the Westphalian principle of non-intervention in the affairs of
others, which is itself a cornerstone of customary international law. What we are left with then is
a legal contradiction – an organization such as the United Nations can with genuine conviction
invoke the R2P doctrine as a necessary response to genocide, ethnic cleansing and other atrocities
that can be associated with state failure, but it can also remain committed to the non-intervention
of outsiders in the internal affairs of sovereign states, even states that exist in principle rather than
fact.

Twisting legal and common definitions for political ends?

The above tension is the one we know best when it comes to the potentially knotty relationship
between failed states and international law. However, its prominence has not prevented calculating
iconoclasts such as John Yoo from pushing it in even stranger directions. (And of deliberately
trying to exploit the ambiguity of what constitutes a failed state for specific policy gains.) In 2002,
for instance, then-Deputy Assistant Attorney General Yoo wrote a memo to the U.S. Department
of Defense that potentially jeopardized the United States’ commitment to the Geneva Conventions.
Yoo argued that because Afghanistan was indeed a failed state, those individuals captured in
military operations there and suspected of being members of the Taliban or al-Qaeda were not
entitled to Geneva protections, because the country was no longer in possession of “the attributes
of statehood necessary to continue as a party to the Conventions.”

So, what we seem to have here are political vacuums in the world that exist without the benefit of
a clear legal definition for what constitutes a failed state. We need such a definition. As enfeebled
as these areas or ‘states’ might be, however, the general consensus is that they should remain
woven into the fabric of international legal conventions and norms, even to the point of having the
latter foisted upon them in R2P scenarios. That this creates frictions with the principle of non-
interference with the internal affairs of a state, regardless of how fictitious it is, goes without
saying. As long as fear of political contagion exists, and as long as notions of a greater international
good continue to trump respect for ‘sovereignty,’ then this legal knot, like the other ones, will
continue.

INTERNATIONAL LAW AS A LADDER TO STATE SOVEREIGNTY FOR ASPIRING STATES

Recognition Does Not Create a State

There is state practice and theoretical justifications to support the notion that recognition has no
effect on whether the state exists. There is, however, also state practice that opposes that view and,
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upon deeper consideration, the theory underpinning the theory has considerable weakness. First
we look to state practice and the existence of opinio juris to assess whether a new state exists as a
legal person before and following the act of recognition.

Many commentators have held that state practice clearly favors the declaratory model, that is, that
the entity exists as a state before recognition. “The better view is that the granting of recognition
to a new state is not a ‘constitutive’ but a ‘declaratory’ act; it does not bring into legal existence a
state which did not exist before. . . . The primary function of recognition is to acknowledge as a
fact something which has hitherto been uncertain.” The I.C.J. has also pronounced that it adheres
to the declaratory view, in the sense that the failure to maintain effective control during the process
of dissolution of a state does not extinguish the legal entity as per the U.N.69 This opinion on
declaratory theory was again supported by the Arbitration Commission of the European
Communities Conference on Yugoslavia, chaired by Robert Badinter, discussing the independence
and status of states of the successor to the S.F.R. Yugoslavia.70 However, the above may not truly
evidence customary international law.

CONCLUSION

To conclude, there has been a clear move away from the Westphalian system of States and the
classical era as States are no longer the exclusive subjects of international law. Nonetheless, they
remain the main type of legal persons due to their absolute competence as an inherent attribute of

69
See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v.
Serb. & Mont.), Judgment, 2007 I.C.J. 91 (Feb. 26) (discussing F. Zacklin, U.N. Under-Sec’y-Gen. & Legal Counsel,
Letter to the Permanent Representatives of Bosnia and Herzegovina and Croatia, U.N. Doc. A/47/ 485 (Sept. 29, 1992)
(stating that the effect of G.A. Res. 47/1 (Sept. 22, 1992), as well as impliedly S.C. Res. 757, U.N. Doc. S/RES/757
(May 30, 1992), was not to terminate or suspend the S.F.R. Yugoslavia’s membership in the U.N.)). See also
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb.
& Mont.), 1993 I.C.J. 3, 14 (Request for the Indication of Provisional Measures, Order of Apr. 8)) (the Court did not
reach a finding on the status of the S.F.R. Yugoslavia)
70
See Conference on Yugoslavia Arbitration Commission, Opinion Nos. 1, 8, & 10, 31 I.L.M. 1488, 1494, 1521-23,
1525-26 (1992) [hereinafter Badinter Commission] (“[T]he effects of recognition by other States are purely
declaratory.”)

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statehood and power of recognition of other subjects of international law. Whether an entity
qualifies as a state is ambiguous due to the lack of definite formal criteria that is not confused by
political and pragmatic considerations. This matter is further disordered by the uncertainty of the
significance of these considerations. The issue of international legal personality has been further
complicated through the extension of legal personality to non-State entities. Their legal capacity
is subject to a functional limitation, dependent upon the recognition by states making it difficult to
establish whether, and to what degree, they have legal personality unless it is expressly provided
for in a treaty or constituent document.

BIBLIOGRAPHY

[Citation manual – for ease of the reader and uniformity in citations,the method of citation
followed is the Bluebook 19th Edition of Citation]

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Cases:
Cases

Advisory Opinion concerning the Legality of the Use by a State of Nuclear Weapons in Armed
Conflict I.C.J. Rep. 1996 ........................................................................................................... 18
Ajay Hasia Etc vs Khalid Mujib Sehravardi & Ors 1981 AIR 487 .............................................. 34
Corfu Channel Case, ICJ Rep 1949 .............................................................................................. 12
Deutsch Continental Gas Gesellschaft v Polish State (1929) 5 ILR 11, 13 .................................. 27
MC Mehta v. Union of India 1987 AIR 1086 ............................................................................... 34
Naresh Shridhar Mirajkar v. State of Maharashtra 1966 SCR (3) 744 ......................................... 35
Nottebohm Case, ICJ Rep 1955 .................................................................................................... 12
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 111 .................. 35
Rajasthan State Electricity Board v. Mohan and Ors. 1967 AIR 1857 ......................................... 33
Reparations for Injuries Suffered in the Service of the United Nations I.C.J. Rep. 1949) ........... 18
Reparations for Injuries Suffered in the Service of the United Nations I.C.J. Rep. 1949. ........... 17
Sukhdev v. Bhagatram AIR 1975 SC 1331 ................................................................................. 33
Texas v. White 74 U.S. 700 (1868 ................................................................................................ 37
The University of Madras v. Shanta Bai, AIR 1954 Mad 67 ....................................................... 33
Tinoco Claims Arbitration (Great Britain v. Costa Rica) 1 U.N. Rep. Int’l Arb. Awards 369
(1923) ........................................................................................................................................ 26
Zee Telefilms v. Union of India AIR 2005 SC 2677 .................................................................... 35

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9. Oppenheim's International Law (9th edn., Harlow:Longman, 1992)
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Reflections’, (1986) The Comparative and International Law Journal of Southern Africa,
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14. Helman, G. B. and S. R. Ratner . ‘Saving Failed States’. 89 Foreign Policy, (1992-3), pp.
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