STATEHOOD AND ITS RELEVANCE IN REALM

OF INTERNATIONAL LAW

Ujjwal Mishra

B.A.LL.B. (self-finance)

Semester - 4

Roll No. 58
Statehood
States have long been, and still are, the principal actors in international relations. As such,
they are recognized by customary international law as having certain international rights
and duties and having the capacity to act internationally: they have legal personality. An
international legal person has the capacity to make binding international agreements and
to bring claims before international and national tribunals to enforce rights given by
international law. Conversely, they are subject to obligations imposed by international
law. Under the Westphalian system, states are the principal actors and the primary
subjects of international law. There are around 200 states of which some 193 are
members of the UN. Under international law states are regarded as having equal status.
Article 2(1)1 of the UN Charter provides that ‘the organization is based on the principle
of the sovereign equality of all its Members’. This is regardless of the huge variations in
size, population and economic wealth of different states, and the disparities in political
and diplomatic power wielded by different states.

Some Definitions

State is ‘a complete association of free men, joined together for the enjoyment of rights
and for their common interest – Grotious

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 -Pufendorf

A perfect State or community … is one which is complete in itself, that is, which is not a
part of another community, but has its own laws and its own council and its own
magistrates. -Vitoria

‘Nations or States are political bodies, societies of men who have united together and
combined their forces, in order to procure their mutual welfare and security. -Vattel

1 Article 2(1), The Organization is based on the principle of the sovereign equality of all its Members. UN Charter

1
What constitutes Statehood?

For many centuries the concept of a state was ill-defined, constitutive elements of
statehood are generally considered to be contained in the Montevideo Convention on
Rights and Duties of States of 1933.Montevideo Convention on the Rights and Duties of
States (the Montevideo Convention) 1933 sets out some generally accepted benchmarks
and provides a good starting point for discussion; Article 1 provides that:The state as a
person of international law should possess the following qualifications: (a) a permanent
population; (b) a defined territory; (c) government; and (d) capacity to enter into relations
with the other states.2 The Arbitration Commission of the European Conference on
Yugoslavia1' in Opinion No. 1 declared that 'the state is commonly defined as a
community which consists of a territory and a population subject to an organized political
authority' and that 'such a state is characterized by sovereignty'. It was also noted that the
form of internal political organization and constitutional provisions constituted 'mere
facts', although it was necessary to take them into account to determine the government's
sway over the population and the territory.3

Permanent population – this refers to a population that is linked to a specific piece of

territory on a permanent basis. The population must be reasonably stable. it was
established that nomadic tribes qualified as a state, as they had links with the specific
territory. There is no requirement for the population to be indigenous and the extent of
social and cultural cohesion required is unclear. In practice, most of the population of a
state will be its ‘nationals’ and have a right to reside in that state. The criteria of
qualification for nationality is determined by national law. The size of the population is
immaterial; it can be as small as San Marino at around 30,000 inhabitants, or as large as
China at around 1.3bn.
Defined territory – this refers to the territory over which control of the state is exercised,
and which demarcates the state from its neighbours. The size of the territory of states can
vary widely from Russia with 17 million km square to the principality of Monaco with 2
km square. The borders of the state’s territory need to be reasonably determinate. The

2
https://www.jus.uio.no/english/services/library/treaties/01/1-02/rights-duties-states.xml
3
M. Craven, 'The EC Arbitration Commission on figoslavia', 65 BYIL, 1994, p. 333

2
existence of border disputes does not necessarily affect the existence of statehood; for
instance, India and Pakistan exist as states even though they have a long-standing
territorial dispute in Kashmir. The refusal to define the extent of the state boundaries is
not fatal to the existence of statehood either; Israel has refused to put maximum limits on
its claims to the Palestinian territories, but there is no doubt that Israel is a state. The fact
that territory is threatened or invaded by an aggressor does not preclude or destroy the
existence of statehood. For instance, in 1990 Kuwait remained a state even when invaded
by Iraq. In the case of a new state emerging out of civil war, the rebel group claiming
sovereignty will need to show control over a sufficiently defined area to claim
independent statehood, as was the case in East Timor in Southeast Asia, and South Sudan
and Eritrea in Africa.
Government – statehood requires the existence of a government in control of territory
and population. It needs to be effective. The degree of control that the government has is
likely to affect a state’s chances of long-term survival. The structure and legitimacy of
the government are relevant to this issue only. The Montevideo Convention does not
demand that the government is democratic or legitimate. The control exercised by the
government does not need to be total. Civil war may provide a serious challenge to
effective government, but the state still exists in international law, as in Libya in 2011
and Syria in 2012.
Capacity to enter relations with the other states – this element causes some difficulty,
in theory, as it defines one of the consequences of statehood. It is helpful to focus on the
requirement of legal capacity. Many territories fulfil the other requirements of the
Montevideo Convention but are not states; for instance, Hong Kong and New South
Wales. Their local/regional governments do not have the capacity to enter relations with
other states. For legal capacity to exist there must be a degree of independence from any
other state. The apartheid government of South Africa declared the black homelands
(Bantustan), such as Transkei and Ciskei, to be independent self-governing states and so
not within the borders of South Africa. This act was not recognized by the rest of the
world, as in reality these areas were not independent of South African control. The degree
of economic and social dependence on other states is not relevant to the existence of
capacity; rather, it is a legal question of whether an entity has capacity to enter relations

3
as a matter of right. An entity may satisfy the other criteria of the Montevideo
Convention which are based on facts,but fail on this legal requirement.4
Conclusion- States exist for various reasons but for them to be part of the international
system of States there are basic criteria that must be met and certain attributes that must
be possessed. If any of these are missing then the respective territories and the people
within them cannot be said to form States, for the essential wholeness of statehood would
be incomplete.

Theories of recognition5
There are mainly two theories of recognition which may discussed as under:
1. Constitutive Theory:
Oppenheim, Hegal and Anziloti are the chief exponents of this theory According to this
theory the only certificate to issue international personality to a new born state is the
consent of the already existing states. In other word a new entity shall only be called a
state when the existing states acknowledges about its statehood. So, the independence of
a new entity shall not amount it to be called a state unless it has not recognized by the
existing states.
Criticism:
The theory has severely been criticized by number of jurists. Because, at first instance
that states do not seem to accept recognition as a legal duty. And at the second instance, it
creates many difficulties when a community claims of being a new state and its non-
recognition will, according to this theory, imply that it has no rights, duties and
obligations under international law. The theory is not correct in any sense so shall be
rejected.
2. Declaratory Theory:
The chief exponents of this theory are Hall, Wagner, Fisher and Brierly. According to
this theory, the statehood or the authority of new Government is not dependent on the
consent of the existing state but is based on some prior or existing fact. According the
followers of this theory, the recognition by the existing states is merely a formal

4
Crawford , J. The Creation of States in International Law. New York: Oxford University Press, 2006, pp. 96
5
https://www.academia.edu/9270019/International_Law (last visited on 6 April, 10:00 am)

4
acknowledgement of the statehood and not the condition, infact the statehood is
dependent on some prior conditions necessary for an entity to be called as a state.
Criticism:
This theory has also been criticized, because it is not correct that in all cases the existing
fact shall imply the statehood, rather some time the statehood may be constitutive.
Conclusion:
From the above discussion it may be concluded that both the theories are insufficient to
reflect the real explanation of recognition. Infact there shall be intermediate course of
approach between the two theories to understand recognition. Briefly, speaking, the
definition of recognition depends upon the mode, scope and nature of each case. In other
words, recognition may be sometimes constitutive and sometimes declaratory.
Issues of statehood before United Nations
The word ‘State’ occurs thirty-four times in the United Nations Charter. To be admitted
to the United Nations an applicant must be a ‘State’.6To bring a question concerning
international peace and security, or any other dispute, before the United Nations, it is
necessary to be a ‘State’.7 To be entitled to participate without vote in the Security
Council’s consideration of any dispute, a party to the dispute must be a ‘State’.8 To
become a party to the Statute of the International Court an applicant must be a ‘State’.
There is thus much opportunity for disagreement about and development of the notion of
statehood in United Nations organs. Article 35(2) permits a State that is not a member of
the UN to ‘bring to the attention of the Security Council or of the General Assembly any
dispute to which it is a party if it accepts in advance, for the purposes of the dispute.
Indonesia was invited to participate in 1947 over its dispute with the Netherlands,
although its statehood was the very point at issue, and despite the fact that it probably did
not yet qualify as a ‘State’ for the purposes of Article 4. A representative of Hyderabad
was heard by the Security Council under Article 35(2) in relation to a dispute about its
status.6 The policy underlying Article 35(2) suggests that no fine distinctions should be
drawn between established States and entities whose status is in dispute; otherwise a
procedural decision could appear to prejudice the substance of the claim.

6
Article 4(1); Admissions Case, ICJ Rep 1948 p 57, 62.
7
Articles, 11(2), 35(2)
8
Article 32

5
The United Nations: admission to membership
The criteria for membership: Article 4 in theory and practice Article 4 of the Charter
states:
1. Membership in the United Nations is open to all other peace-loving States which
accept the obligations contained in the present Charter and, in the judgment of the
Organization, are able and willing to carry out these obligations.
2. The admission of any such State to membership in the United Nations will be affected
by a decision of the General Assembly upon the recommendation of the Security Council.
The conditions for admission are thus five in number: ‘to be admitted to membership in
the United Nations, an applicant must (1) be a State; (2) be peace-loving; (3) accept the
obligations of the Charter; (4) be able to carry out these obligations; and (5) be willing to
do so.
Why some consider International law as weak law?9
Followings are the Weaknesses of International Law;
l. The greatest shortcoming of International Law is that it lacks an effective executive
authority to enforce its rues.
2. The International Laws are based on international treaties and conventions, and there is
lack of effective legislative machinery, therefore these are interpreted by the states
according to their self-interest.
3. The International court of Justice which is situated in Hague (Netherland) is not
authorized to take cases of all states. The cases can be filed in this court with the mutual
consent of concerned states.
4. Due lack of effective sanctions, rules of International Law are frequently violated by
the States.
5. As per article 2(7) of UNO Charter, UNO is not competent to interfere in the domestic
matters of states. International law cannot interfere in the domestic matters. Keeping in
view these facts in several cases International Law proves to be ineffective and weak.

9
http://www.lawandshariah.com/discuss-international-law-is-the-weak-law/ (last visited on 6 April, 4:00
pm)

6
6. There is one more reason behind the weakness of International Law is its uncertainty.
It is not certain as the laws of states as well as Municipal law. In addition to this it has not
been able to maintain international peace and order.
7. It is inadequate to meet the need of international community.
8. International law is very slow in its growth as compared to national law.
9. International law is found in scattered form. it is different for scholar to find it on one
place.
10. The unwillingness and unpreparedness is also the weak point of the states to accept
the command of international law.
Conclusion
International law has played an important role to bring harmony or peace on globe.
Disputes or conflicts can be solved by arbitration on platforms like International court of
justice. Statehood has been proved to be the major subject of international law. The world
now is a better place than before where one state is promised for the safety of its
sovereignty. International law plays an important role for the determination of when an
entity constitutes a State, since it is for the international legal order to provide a legal
qualification and establish the legal consequences of a subject of international law, in
particular its rights and obligations. The role of international law in this regard is twofold:
it has a positive role of determining, in certain cases, whether an entity constitutes a State
even in the absence of effective government, as well as a negative role of denying
Statehood to entities which claims it, but which were established in violation of rules of
international law. Indeed, a strong presumption applies to the continuity of a State once it
has been created, and, therefore, against its extinction even when the loss of an effective
government occurs. States, however, do become extinct, either in voluntary or
involuntary ways, as long as a succession of States occurs, i.e. another States, which may
be a new one, takes over the responsibility of the population and territory of the State it
succeeds. states have legal personality, and an international legal person has the capacity
to make binding international agreements and to bring claims before international and
national tribunals to enforce rights given by international law also, they are subject to
obligations imposed by international law. That’s why statehood would be the most
important subject for the International law.