"Since the development of the modern international system, statehood has
been regarded as the paramount type of international personality; indeed, in
doctrine if not in practice, States were for a time regarded as the only
international persons. This is no longer so; but the political paramountcy
of States over other international actors, with whatever qualifications,
continues, and Statehood remains the central type of legal personality.
Problems of definition and of application of the definition, of statehood
thus occupy an important place in the structure of international law....
Perhaps the most controversial issue in this area is the
relationship between statehood and recognition. The view that
recognition is constitutive of State personality derives historically from
the positive theory of international obligation. However, this view does not
correspond with State practice; nor is it adopted by most modern writers.
On the other hand, in this as in other areas, relevant State practice -
including recognition practice, especially where recognition is granted or
withheld on grounds of the status of the entity in question - is of
considerable importance.
Against this background, this study examines the criteria for
statehood in international law, and the various ways in which new States
have been created in the period since 1815.
Traditionally, the criteria for statehood have been regarded as resting
solely on considerations of effectiveness. Entities with a reasonably
defined territory, a permanent population, a more or less stable government
and a substantial degree of independence of other States have been treated
as States. Other factors, such as permanence, willingness to obey
international law, and recognition, have usually been regarded as of rather
peripheral importance. To some extent this represents the modern position.
However, several qualifications are necessary.
In the first place, this standard view is too simple. Much depends on the
claims made by the entities in question, and on the context in which such
claims are made.
In some circumstances, criteria such as independence or stable government
may be treated as flexible or even quite nominal; in other cases they will
be strictly applied.
Apart however from the necessary elaboration of the criteria for statehood
based on effectiveness, a serious question arises whether new criteria have
not become established, conditioning claims based on effectiveness by
reference to fundamental considerations of legality.
Practice in the field of self-determination territories is the more
developed, but the same problem arises in relation to entities created by
illegal use of force...
Problems of the creation of States have commonly been regarded as matters
'of fact and not of law'. This view was again simplistic, since it assumed
the automatic identification of States, whether by recognition or the
application of criteria based on effectiveness.
In practice, identification and application of the criteria to specific
cases or problems raise interesting and difficult problems...."
