Chapter 1 - Section 2

Defining Statehood

     In 1904 Franz Von Liszt wrote that independence and supremacy over territory were crucial characteristics of the state. Before that, Italian Jurist Pasquale Fiore, highlighted political power along with law:

The State is an association of a considerable number of men living within a definite territory, constituted in fact as a political society and subject to the supreme authority of a sovereign, who has the power, ability and means to maintain the political organization of the association, with the assistance of the law, and to regulate and protect the rights of the members, to conduct relations with other states and to assume responsibility for its acts.1

     According to international legal scholars, there are two competing theories that dominate the debate on statehood: the declaratory and constitutive theories.2 Those that argue in favor of the declaratory theory suggest that “recognition” is simply an acknowledgement of existing statehood status. It is argued that the satisfaction of certain objective criteria is enough to acquire statehood. Declarative theory allows for “the expression of goodwill to a new entity and recognizes the ability of a State to establish good relations with a new State” based on sovereignty and exclusive control within the territory. This view was codified in Article 3 of the Montevideo Convention as discussed below 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 recognized as a sovereign authority. The status of Statehood thus, according to this theory based on fact and recognition, should be automatic.3 According to the constitutive theory, the legal status of Statehood can only be given by the political recognition of other States once certain standards and criteria are fulfilled by the new State. Recognition is not automatic but rather based on the judgment of other States. This is based on the fact that non-recognition 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. The Turkish Federated State of Northern Cyprus, for example was denied statehood by the Security Council because Turkish troops invaded Northern Cyprus in 1974. The use of force by Turkey to capture territory was considered illegal by the United Nations Charter (Art. 2(4)).4

  1. As quoted in Thomas Grant, “Defining Statehood: The Montevideo Convention and its Discontents,” HeinOnline – 37 Colum. J. Transnat'l L. 403 1998-1999
  2. Abebe Aynete, “Unclear Criteria for Statehood and its Implications for Peace and Stability in Africa,” Conflict Trends, Issue 1, 2012, p.43
  3. Ibid.
  4. SC Res 541 (1983); SC Res 550 (1984)
Section 1   Section 3