Statehood Is a Matter of Politics, Not of Law

Topics: United States, United Nations, International law Pages: 9 (3229 words) Published: May 2, 2011
‘Statehood is a matter of politics, not of law.’
It is argued that statehood is attained after the fulfillment of certain prerequisites or “criteria”. Nevertheless, the application of criteria is not without problems: “The multi-criteria nature of concept, the tangled web of historically-specific pathways of state development, and differences in state forms have all contributed to substantial theoretical difficulties in reaching any wide agreement about how to define ‘the state’” (Dunleavy, Patrick,2007) What instruments have attempted to define the idea of the state? Max Weber's classic definition remains to be highly influential. His definition claims that a state is an organization which “(successfully) claims a monopoly on the legitimate use of physical force within a given territory”. The Montevideo Convention is another source that is often cited as a guide in determining statehood. According to the Convention, a state should harbour a defined territory, a permanent population, and a government with the capacity to enter into relations with other states. So, is meeting these preconditions enough to be considered as a state, or does being recognized as a state define statehood? Malanczuk argues the following: “recognition is one of the most difficult topics in international law. It is a confusing mixture of politics, and international law the legal and political elements cannot be disentangled; when granting or withholding recognition, states are influenced more by political than by legal considerations, but their acts do have legal consequences. Herein, statehood becomes politically charged, and the influence of power may have a definitive effect on an entity's legal status as a state or not. The constitutive theory on statehood argues that recognition constitutes state existence, that is, an entity is not a state before it is recognized as such. Contrastingly, the declaratory theory argues that a state exists prior to recognition; the state's de facto existence is separate from its de jure status. Recognition, then, is “merely an acknowledgement of the facts.”(P. Malanczuk, 2002) A clear definition of what it is to be a state has not been codified in international law. This is probably due to its highly subjective nature; statehood is ultimately a politically charged and sensitive topic that is subject to bias. In this context, identifying the legal elements of statehood is increasingly difficult. The Montevideo Convention of 1933 is often cited as the criteria for statehood, and thus the Convention now has a place in customary international law, meaning it has “evolved from the practice or custom of states”, ( M. Dixon ,2007) and it is “what states make of it” (M. Dixon ,2007). Thus, customary international law evolves over time, changing according to the practice of states. This suggests that the prerequisites of statehood in international law are subject to the practice of (already recognized) states, varying according to the opinion of these actors. Since recognition is a political act, it can be easily affected by value judgments and other extra legal conceptions. This is where politics and politically charged interpretations of norms and “criteria” begin to have a pronounced effect on the realization of statehood. Does recognition, then, over ride the other criteria for statehood? Ultimately, does the “state create recognition, or recognition creates the state?” (J. Crawford, 2006). It seems then, that prerequisites to statehood can be found in the extra legal. The ICJ affirms this view, stating the Montevideo Convention is not a source of customary international law. As no legal codification defines statehood, the task of determining statehood becomes somewhat subjective, depending on the situational context and the specific circumstances of the case in question. Consequently, this makes statehood a concept liable to politics, interpretation, and ultimately, power. Moving beyond abstract formulations,...
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