6 – STATEHOOD
Statehood is a fundamental concept in international law, but states are not the only subjects of IL. Eg. in
Reparation for Injuries Suffered in the Service of the UN AO (1949), the ICJ recognised the UN exercises
and enjoys functions and rights which can only be explained by possession of international personality
and the capacity to operate on the international plane (UN was allowed to bring a claim in SR). IL has
since grown to include other international organisations and even individuals (states may confer rights
on individuals by treaty which are enforceable under IL – eg ECHR, Inter-American Convention on HRs).
There are two basic categories of legal personality – objective and qualified. Objective – the entity’s
international personality can be accepted by any other international personality (operates erga omnes);
in Reparation (1949), court noted 50 states, “representing the vast majority of the members of the
international community” could bring into being an entity possession objective personality and the
capacity to bring international claims. Cf. qualified – any international person can accept that an entity
has personality in relation to itself (qualified personality may be accepted to keep non-state territorial
entities subject to rules of force/war).
Criteria for Statehood in IL
Art 1 Montevideo Convention on the Rights and Duties of States (1933)*: “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”
*relevant not by the convention (only 16 parties), but because it is expression of CIL that is accepted
Montevideo has been criticised for circularity (how is (d) ascertained? Is it a cause or consequence?), so
Crawford suggests a more illuminating guidance:
i. Territorial community under government;
ii. Independence;
iii. Inexistence of legal obstacles to statehood.
Territorial Community under Government (a-c of Montevideo)
This requires a core territory (but existence of boundary disputes does not prevent a state), a
permanent population (but no numeric threshold), and an effective government (matter of degree –
look for centralised administration, legislative organs, etc).
Falkland issue did raise question of whether a minimum population was needed for self-
determination – no answer as of now.
Aaland Islands: states aren’t sovereign until “a stable political organisation had been created,
and until the public authorities had become strong enough to assert themselves throughout the
territories of the State without the assistance of foreign troops” (likely higher burden than
needed in all contexts now).
- Cf. Somalia – UN member despite being a ‘failing state’ (Thurer classifies as:
imploding structures of power and authority internal collapse of law and order +
Statehood is a fundamental concept in international law, but states are not the only subjects of IL. Eg. in
Reparation for Injuries Suffered in the Service of the UN AO (1949), the ICJ recognised the UN exercises
and enjoys functions and rights which can only be explained by possession of international personality
and the capacity to operate on the international plane (UN was allowed to bring a claim in SR). IL has
since grown to include other international organisations and even individuals (states may confer rights
on individuals by treaty which are enforceable under IL – eg ECHR, Inter-American Convention on HRs).
There are two basic categories of legal personality – objective and qualified. Objective – the entity’s
international personality can be accepted by any other international personality (operates erga omnes);
in Reparation (1949), court noted 50 states, “representing the vast majority of the members of the
international community” could bring into being an entity possession objective personality and the
capacity to bring international claims. Cf. qualified – any international person can accept that an entity
has personality in relation to itself (qualified personality may be accepted to keep non-state territorial
entities subject to rules of force/war).
Criteria for Statehood in IL
Art 1 Montevideo Convention on the Rights and Duties of States (1933)*: “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”
*relevant not by the convention (only 16 parties), but because it is expression of CIL that is accepted
Montevideo has been criticised for circularity (how is (d) ascertained? Is it a cause or consequence?), so
Crawford suggests a more illuminating guidance:
i. Territorial community under government;
ii. Independence;
iii. Inexistence of legal obstacles to statehood.
Territorial Community under Government (a-c of Montevideo)
This requires a core territory (but existence of boundary disputes does not prevent a state), a
permanent population (but no numeric threshold), and an effective government (matter of degree –
look for centralised administration, legislative organs, etc).
Falkland issue did raise question of whether a minimum population was needed for self-
determination – no answer as of now.
Aaland Islands: states aren’t sovereign until “a stable political organisation had been created,
and until the public authorities had become strong enough to assert themselves throughout the
territories of the State without the assistance of foreign troops” (likely higher burden than
needed in all contexts now).
- Cf. Somalia – UN member despite being a ‘failing state’ (Thurer classifies as:
imploding structures of power and authority internal collapse of law and order +
