The State in International Law

by

Mathias Forteau

• LAST REVIEWED: 28 November 2016
• LAST MODIFIED: 28 November 2016
• DOI: 10.1093/obo/9780199796953-0144

Introduction

According to James Crawford (in Brownlie’s Principles of International Law, 8th ed., 2012, pp. 127–128), “Despite the importance of the subject matter [the creation and incidence of statehood], the literature is rather uneven. Three factors have contributed to this. First, though the subject is important as a matter of principle, the issue of statehood does not often raise long-standing disputes. Secondly, much of the literature is devoted to broad concepts of sovereignty and equality of states and gives prominence to incidents of statehood rather than its origin and continuity. Finally, many rifts in relations between particular states concern issues of government rather than statehood.” This being said, the literature on statehood is far from being nonexistent. There are a number of books and articles on the topic, so a selection is therefore needed. This article does not, accordingly, pretend to be exhaustive. It will focus on five issues, favoring for each of them the most relevant, the most recent, or the most illustrative books or articles: general aspects of statehood in international law, evolution of statehood in history, state definition under international law, forms of states, and categories of states. It will not deal, on the other hand, with topics ancillary only to statehood and that deserve a specific bibliography, such as sovereign equality, recognition, secession and dissolution, or specific cases (i.e., Palestine, Kosovo).

General Overviews

The role played by international law in the regulation of statehood is still disputed. Crawford 2006 and Marek 1955 argue that it is regulated by international law, albeit in a specific way. According to Quéneudec 2008, international law would even regulate the designation and symbols of the state. Others, such as D’Aspremont 2014, tend to think that the role played of international law is overestimated.

• Crawford, James. The Creation of States in International Law. Oxford: Oxford University Press, 2006.

  This seminal book is entirely devoted to statehood issues. It constitutes both an excellent introduction to and a detailed analysis on the topic. The book deals in particular with the various theories of statehood (whether the state is a fact or a construction of law, whether a state exists per se, objectively, or only in an intersubjective way, depending on other states’ recognition). The book contains a detailed “select bibliography.”

• D’Aspremont, Jean. “The International Law of Statehood.” Connecticut Journal of International Law 29 (2014): 201–224.

  According to D’Aspremont, who favors an anti-legalist approach of statehood, a foundational inquiry of the so-called law of statehood is needed. His article elaborates on the rationales behind the efforts of international lawyers to construct a law of statehood and tries to show, in particular, that the so-called law of statehood is informed by some intra- and extra-professional dynamics, especially a common project for the advancement of international law.

• Marek, Krystina. Identity and Continuity of States in Public International Law. Geneva, Switzerland: Libr E Droz, 1955.

  Marek’s study deals with the highly controversial issue of whether one state died or continued its unchanged legal personality when it is facing situations such as illegal annexation or occupation (like the Baltic States did after the Second World War).

• Quéneudec, Jean-Pierre. Le nom et les symboles de l’Etat au regard du droit international: Mélanges Puissochet. Paris: Pédone, 2008.

  As the Macedonia v. Greece case submitted some years ago to the ICJ shows, the choice by a state of its own name can raise difficult legal issues. The name and the symbol of a state, even though they could seem a quite anecdotal issue, fall under the ambit of international law and deserve to be analyzed as such. See pp. 247–253.