"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...."
