Statehood in International law
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Statehood in international law
When looking at the map of the world it appears as if almost the whole world is nearly divided into separate parts, with each part representing a defined territorial entity, knowns as a state. But under the nearly divided surface, a closer examination reveals that the concept of “statehood “is shrouded in many ambiguities. For example, what makes a state, a state?
As over a century there has been a great debate between the “declarative” and “constitutive” schools of thought on statehood. According to the “declaratory theory”, a state should possess the following qualifications: (a) a defined territory, (b) a permanent population, and (c) a government. These criteria are provided by art.1 of the Montevideo Convention on the rights and duties of states of 1933(Montevideo convention). Art. 3 of the same convention declare that statehood is independent of recognition by other states. The declaratory theory prescribes that recognition of a state by the existing state is nothing more than expressing the willingness to enter into relations with that state; in other words, accepting the existing conditions of statehood. The declaratory theory appears to be consistent with the current practice of recognition, which is primarily used as a political tool by states.
In contrast, according to the “constitutive” theory, a state only becomes a state under-recognition by the other states. Once the three factual criteria of the declaratory theory have been met, this “factuality” must then be confirmed by the existing state. The doctrine has proved untenable in practice, as there is no international body with the authority to acknowledge the existence of states on behalf of the entire community of states. Therefore, each state may individually decide whether a new state has come into being (and recognized it). If the constitutive theory would serve as the basis of statehood, it would lead to the strange consequence that an entity would be considered a state by some states ( those that have recognized it). Consequently, the question arises on what the status of such a territorial entity is under international law, and by extension how it should be treated by the other members of the international community: is such an entity entitled to any form of sovereignty for example? Besides, there is no international obligation for states to recognize a territorial entity as a state once it fulfills the factual criteria for statehood: recognition often relies on other considerations besides legal ones.
Apart from recognition, there are other issues relating to the factual criteria for statehood. As mentioned above, a government is an essential (factual) requirements for statehood. This government must be capable of exercising effective authority over the territory and its population. However, as it currently stands under international law, once a state has been formed, there are very few rules governing its end (shorts of dissolution, or a merger with another state. Even if internal unrest or civil war leads to lasting anarchy and the de facto and the collapse of state arguably as in the case of Somalia or sierra leone- state practice has not resulted in the “denial” or the “de-recognition” of statehood.
Public international law is a system of law that is primarily concerned with the relationships between states.
State and Criteria of Statehood
A state can be defined as a nation or territory considered as an organized political community under one government.
Statehood is the condition of being a state especially: the status of being one of the states of the US.
Article 1 of the 1933 Montevideo convention on the Rights and Duties of States, which has crystallized into customary law, is typically taken as the starting point for assessing whether an entity satisfies the criteria to be a state. These are:
- The existence of a permanent population
- A defined territory
- Capacity to enter into a relationship with other states
- Permanent Population: states are not only territorial entities, but they also consist of groups of individuals. Therefore, a permanent population is a requirement for statehood. There are no criteria relating to the size of the population: Andorra with its 68,000 inhabitants is as much as a State as India, which now has currently had well over one billion inhabitants. Neither does international law set any requirement about the nature of the population: the population may largely consist of nomads (such as in Somalia), it may be ethnically (relatively) homogeneous (such as in Iceland) or very diverse (such as in the former Soviet Union), it may be very poor (Such as Sierra Leone, wherein 2000 nearly 70 percent of the population lived below the poverty line) or it may be very rich(as in many western states)
It should be noted that the requirement of a permanent population does not relate to the rationality of a population: it merely requires that states have a permanent population. Neither does international law prescribe which person belongs to a state. States are free to determine to whom the nationality of the state is granted. It is important to note that nationality depends on statehood and not the reserve: that is the state can give a certain nationality to a person, due to being a state.