What Makes a State a State?

The concept of statehood has been the cause of some of the greatest conflicts in the past century as entities seek to carve out their own independent cultural identity and enter the international stage. It is the highest legal personality that can be afforded to an entity, with the full range of rights and responsibilities that are available to the international community granted. The dissolution of the former Yugoslavia, the Southern Ossetian independence movement, and the declaration of independence by the entity of Somaliland are just three contemporary examples that highlight the importance a population places on achieving statehood. However, what makes a state a state? What is the yardstick to measure when an entity has achieved statehood? This blog will examine the two competing theories of statehood and provide a basic overview of the area.

Declarative Theory

The declarative theory has four requirements for an entity to be considered a state and is based upon the Montevideo Convention of 1933 – a treaty that has attained customary status in international law. While there is no internationally agreed upon legislation detailing the regulations regarding statehood, the Montevideo Convetion has historically been the method of examining whether statehood has been achieved. Article 3 of the Convention declares a state to exist if it meets the following criteria:

1. A Defined Territory – While there must exist some core territory for the entity to possess, international law states that the borders do not require to be fixed. Border disputes are permitted for a state to exist – and there is a useful list of existing border disputes between recognised sovereign states in a Wikipedia article.
2. A Permanent Population – There is no threshold for population size for an entity to achieve statehood. The state with the smallest population is Nauru with just over 10,000 citizens whereas China and India have populations of over 1,000,000,000.
3. Governance – International law requires effective possession of, and control over, a territory. Only in exceptional circumstances does it allow corporate entities that have lost effective control over territory to survive as international entities for some time. This criterion is somewhat inconsistently applied, however. For example, Croatia & Bosnia-Herzegovina were both recognised as independent by EU despite non-governmental forces controlling large parts of territory in civil war.
4. Capacity to Enter into Relations with Other States – There must be some degree of autonomy and legal independence for the entity before statehood is granted. For example, despite relying on each other heavily for a large range of matters, the Czech Republic and Slovakia can be considered two distinct states as they both have the ability to enter into relations separately.

Constitutive Theory

While the above criteria seem to be logical, it can often be extremely difficult to ascertain whether an entity has achieved each of these prerequisites. For this reason, there has been a move away from the traditional declarative theory, based on the Montevideo Convention, and shift towards the constitutive theory. The constitutive theory does not give criteria, instead focusing on the role of recognition by other States. Under the constitutive theory, the principle of statehood is political, based on the notion of recognition, rather than legal requirements. Essentially, a state can be considered to be sovereign if another state recognises it as such.

Collective recognition could assist an entity that does not meet the full requirements set forth in the Montevideo Criteria. However, it raises a challenging question regarding the ability of recognition curing any defects a potential state may have in fulfilling the Montevideo Criteria. This can be seen in the ICJ’s decision to accept Bosnia-Herzegovina’s statehood despite leaders not controlling of a large proportion of the territory at the time. There is, however, no recognised standard regarding exactly how much recognition is required to fulfil the theory.