Law Quarterly

The Theories of Statehood in the Context of International Law

By Alexandra Kiosse

Sep
27

From minor skirmishes between sedentary tribes at the start of the Neolithic Revolution to modern global conflicts, the idea of statehood and sovereignty has been a contentious topic influenced by individual and societal desires to create, govern, and possess a personal segment of the earth. Several events in particular marked revolutionary shifts in the discourse surrounding statehood, including the Treaty of Westphalia, the surge of nationalism leading up to World War I, and the Montevideo Convention. Amongst changing geo-politics, shifting borders, and increasing territorial conflicts, discourse surrounding statehood stems from one central question: what makes a state?

In 1933, sixteen North and South American states met in Uruguay to sign the Montevideo Convention on the Rights and Duties of States, which most notably included the four criteria for statehood: a permanent population, a defined territory, one unifying government, and the capacity to enter into relations with other states. Although these ideals had already been widely agreed upon as a part of customary international law, a non-binding and vague but universally accepted set of guidelines for global relations, the Montevideo convention served to codify these requirements as a precedent for future disputes about sovereignty. These criteria constitute the declarative theory of statehood, in which meeting all four requirements grants a territory sovereign statehood.

The declarative theory of statehood is only one of two methods of determining a territory’s status in the global geo-political realm. The alternative, the constitutive theory of statehood, formulates that a territory can be considered a state only if it is recognized as such by other states. Under the scope of the constitutive theory, even if all four criteria of the declarative theory are met, a state will not be recognized as such in international law unless other states choose to recognize it as well. Although the Montevideo Convention featured signatories from the Americas, and in spite of the contentious nature of the declarative theory, the criteria were meant to apply to all subjects of international law because it was a restatement of existing customary law. However, for many states that exist in the grey area of international law, neither the declarative theory nor the constitutive theory is sufficient.

For example, Taiwan, officially known as the Republic of China, meets all four criteria and is, for all intents and purposes, a sovereign and independent state. It has a stable population of about 24 million people, a defined island territory, a single ruling government, and a fiscal relationship with other states. However, Taiwan is still a part of the People’s Republic of China. International law doesn’t seek to challenge Taiwan’s status because of the power and authority of China in the global playing field. Although the criteria for statehood exist in the context of international law, global powers can influence a state’s status without opposition with initiatives like the “China One” policy that seeks to end diplomatic relations with any nation that recognizes the Republic of China as independent, for instance. In this way, the declarative theory of statehood falls short.

Simply subscribing to the constitutive theory does not offer a clear solution either. It is unclear if a state requires the recognition of all present member-states or only a few. One of the pressing global-conflicts to this day involves the states of Israel and Palestine. Although Palestine is not widely recognized in comparison to Israel, the Arab League, with the exception of Jordan, acknowledges Palestinian statehood. However, with a lack of territory that is both sovereign and separate from that of Israel, the status of Palestinian statehood is controversial at best; so much so, that the government of Palestine itself does not discuss Palestine as if it has already achieved complete statehood.

When acknowledging the utility of both the declarative and the constitutive theories, the third alternative for achieving a specific set of regulations for statehood is considering both theories when determining a territory’s status. This method involves taking into account the four criteria discussed by the declarative theory as well as the aspect of recognition by other nations that is the essence of the constitutive theory. The Moldovan territory of Transnistria has been essentially independent since the collapse of the Soviet Union when it separated from the rest of Moldova. Transnistria’s distinct cultural roots, heritage, and political ideologies enabled it to create its own independent government, complete with a permanent population and a defined territory. However, no member-states recognize Transnistria as a state, and it is thus unable to participate in international affairs. Consequently, it is unlikely to gain member-state recognition in the foreseeable future.

With the inconsistency surrounding international law in regard to the status of states, both the declarative and the constitutive theory tend to fall short, enabling several partially-recognized states, polities that have declared independence and sovereignty but have not been universally acknowledged, to fall between the cracks. Whether international law should evolve to enforce the pre-decided criteria and demystify the status of partially-recognized states or create a more encompassing and sensible set of guidelines to determine a territory’s standing has yet to be decided.

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