Statehood

Dr CJ Tchawouo Mbiada
 The Nature of Statehood under International Law

• Definition
• There is no generally accepted definition of statehood in international law, despite longstanding efforts by
international lawyers (and episodic efforts by states) to develop one. It is somewhat surprising that
• agreement over the definition of such a central subject in international law has eluded states and scholars.
• Over the years, various reasons have been advanced for the failure to define ‘the state’ – such as the politics at play,
or the context within which questions of definition generally arise
Characteristics of states?
Four criteria contained in the 1933 Montevideo Convention on the Rights and Duties of States:
• a permanent population;
• a defined territory;
• government; and
• capacity to enter into relations with other states
A defined territory
• States are ‘territorial entities’ or, according to the Montevideo Convention, they have a defined territory. This
includes not just land itself but also the territorial sea (in the case of coastal states) and the air space above the
state. States’ territories come ‘in all shapes and sizes’. They range considerably in size.
• Moreover, not all states are single, contiguous landmasses; different parts of a state can be separated from one
another (with other states between them). For example, Alaska and Hawaii are both part of the United States
of America, even though they are separate from the other states and, insofar as Alaska is concerned, Canada
stands between it and mainland America.
• Although states may have defined territories, many states have disputed borders – that is, disputes over the
precise territorial boundaries of the state. Eg Israel and Palestine
Characteristics of states?
A permanent population
States are made up of people or have a ‘permanent population’, in terms of the Montevideo Convention. As is
the case with territory, populations come in different sizes.
The Vatican City is a good example of how small a state can be: as at 2006, it had only 768 inhabitants. While
the ‘population’ for these purposes need not necessarily be nationals of the state, in the legal sense, a number of
authors suggest they must have some relationship to the would-be state.
Effective government
States have governments, or more specifically effective governments. For some, this is the most important
attribute of statehood, as ‘all the others depend upon it’. The relationship between government and statehood is
particularly controversial, and discussions in this regard tend to blur the distinction between the state, on the one
hand, and the government on the other.
Effective government implies ‘a system of government in general control of its territory, to the exclusion of
other entities. Effectiveness in this context is generally taken to mean that the government of a putative state
must demonstrate unrivalled possession and control of public power … throughout the territory concerned. Once
that unrivalled possession is established, recognition of statehood may follow
Characteristics of states?
Capacity to enter into relations with other states
States possess the capacity to enter into relations with other states. This ‘capacity’ is evidenced by entering into
treaties with other states, exchanging diplomats with other states and by approaching international courts to
settle disputes.
Most authors agree, at the very least, that the Montevideo criteria (defined territory, permanent population,
effective government and capacity to enter into relations with other states) must be satisfied. However, there is
some debate among them as to whether these requirements are exhaustive, or whether there are additional
requirements for statehood.
Eg independence, or the principle of self-determination and the prohibition on the use of force.

Self-determination as a category is not only separation/secession but it

also entails the right to gain democratic autonomy within a federal
state or the right to annex with another state.
Statehood and Recognition?
Recognition theories
The manner in which states come into existence or are created is a matter of some controversy. As a result of this
issue’s early influence on debates about statehood, most academic discussions regarding statehood are organised
around the concept of the ‘recognition of states’. In this regard, there is an ongoing debate between two theories
of how states come into existence.
Constitutive theory
The classic statement of the constitutive theory is that ‘a State is, and becomes, an international person, through
recognition only and exclusively’. Simply put, recognition constitutes the state. The act of recognition, therefore,
is central to this theory of statehood: it is the ‘tool of statecraft’. Crucially, recognition is a ‘high political act’,
and states are given full discretion in choosing whether or not to recognise an entity claiming statehood. States
cannot claim a right to recognition on the part of other states.
Declaratory theory
Modern exponents of the declaratory theory assert that ‘the creation of States is a matter in principle governed
by international law and not left to the discretion of individual states’. The act of recognition ‘merely
acknowledges or declares that a community has come to possess all the requisites of statehood.
 Decolonization era (1950s-60s)
• Recognition of colonized territories as new states (not de facto states)

• ‘salt‐water rule’: to be considered a ‘colony’ entitled to independence, it

had to be separated from its mother country by an ocean.
L. Berat, Walvis Bay: Decolonization and International Law (Yale UP, 1990).

• No freedom to change the borders (previously drawn by the colonizers).

→ international consensus—about who was claiming self‐determination, where their

borders were, and the justice of their claim—that most present movements do not enjoy.