A Theory of Statehood and Personality in International Law
Which political entities have personality in international law? ‘States’ is an inadequate answer. Historically, the term has not always designated a stable, legally meaningful category of entities, nor have states been the sole political entities with rights and duties. Moreover – contrary to traditional views – there is more than one means of acquiring statehood, with the consequence that not all states are alike in legal terms. This thesis offers an explanation of the personality of states and other political entities that takes this complexity into account. The first chapter of the thesis presents a definition of the personality of political entities. The definition draws on W N Hohfeld’s approach to rights and duties and requires a person to have at least one right or duty in his sense. This emphasises that personality is primarily about conduct: international law regulates conduct by persons towards other persons. Chapter 2 investigates the personality of political entities before the twentieth century, focusing on the question of what differences existed between Western states and the empires, chiefdoms, and other political entities found elsewhere in the world. This question was significant for the emergence of a stable concept of statehood. Chapter 3 examines the general rules about statehood. It rejects both the view that statehood always depends on criteria of effectiveness and the view that statehood always depends on recognition. The most persuasive view is that statehood can be acquired either by effectiveness or by recognition (with some qualifications: notably, recognition may create statehood relative only to some other states). This explains, among other things, how states can survive extended periods of anarchy. Chapter 4 deals with exceptions to the general rules, showing that recognition usually cannot be used to breach an existing state’s territorial integrity and that the role of peremptory norms must be reassessed in light of the existence of two alternative means of acquiring statehood. The final chapter concerns the possibility that political entities may have personality short of statehood.
International Law, Legal Personality, States
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