Part I – Theoretical Perspectives

Chapter 1: Confirmed versus Contested States

On This Chapter


Requirements of confirmed statehood





Inter-state relations



Attributes and categories of contested statehood

Alternative designations



The defining feature of contested states is the internationally disputed nature of their purported statehood, manifested in their lack of de jure recognition. Although serious, the deficit in recognition is not the same for all contested states. In most cases their very right of statehood is challenged by the international community, resulting in no formal recognition at all or recognition by only a small number of established states. In a few instances contested states’ right of statehood finds wide acceptance and may even be endorsed by the UN, but the realization of the right is internationally contested. But whatever differences among them, all contested states are denied conventional international recognition; this means they do not have collective recognition (typically through the UN) of both their right to exist as sovereign states and their actual existence as such. Conversely, they all experience collective non-recognition in the sense of being deliberately excluded from UN membership. This leaves contested states in a rather abnormal situation because the vast majority of contemporary states were accorded de jure recognition on gaining independence and accepted into the ranks of confirmed states without difficulty. The small group of aspirant states that has been turned away by those on the inside find themselves condemned to a twilight existence at the margins of the international community.

In trying to explain this lack of recognition and its repercussions, we need to look into the familiar criteria for statehood in international law. These represent the minimum formal preconditions for an entity’s acceptance into the community of sovereign states. Were contested states refused recognition because they failed to meet the basic requirements of statehood? Or were they denied recognition on grounds unrelated to these standards? Conversely, have all confirmed states complied with the formal criteria of statehood or have different standards been applied to different candidates?

Requirements of confirmed statehood

A consideration of the formal requirements of statehood has to begin with the Montevideo Convention on Rights and Duties of States. Adopted at the 1933 International Conference of American States held in the Uruguayan capital, the Declaration reflected customary international law on what constituted a state. As a subject of international law (meaning an entity recognized as being capable of exercising international rights and duties), a state has to meet four qualifications: a permanent population, a defined territory, a government, and a capacity to enter into relations with other states.1 Although the most widely accepted formulation of the minimum requirements of statehood found in international law,2 this set of criteria is very broad indeed. What content has state practice since given to each of the four components, and have others been added? We should be particularly interested in the role of international recognition in constituting statehood.


To meet the first formal requirement, an entity must have ‘some population linked to a specific piece of territory on a more or less permanent basis and who can be regarded in general parlance as its inhabitants’.3 A ‘permanent’ population does not imply that people cannot migrate across state boundaries, although the requirement may be problematic for some nomadic populations like the Roma of Central and Eastern Europe. Peoples who have traditionally been non-sedentary may find themselves in a stateless limbo. A nomadic population can nonetheless strive for statehood, as the Sahrawis – one of our case studies – have shown. Their link with the territory of Western Sahara is generally regarded as sufficiently strong to treat them as its permanent population.4

There is no requirement in international law that the population of a state should share significant commonalities other than finding themselves living on a particular national territory. They need not constitute a distinctive ‘people’ or ‘nation’ in terms of language, culture, religion or descent that would give them ‘an intense, emotionally charged sense of belonging’.5 This is not to deny that such bonds may be desirable and advantageous. As the German jurist and philosopher Von Wolff wrote in a seminal work on international law, ‘[i]t is not the number of men coming together into a state that makes a nation, but the bond by which the individuals are united’.6

In many cases the existence of a nation thus defined preceded the creation of the state. Where the territorial boundaries of the state by and large correspond with the location of a pre-existing nation – or where state and nation (the latter conceived in Weberian terms as a ‘community of sentiment’) coincide – we can speak of a nation-state in a very literal sense.7

Examples include Bangladesh, Swaziland and Eritrea. It is more common that states contain a diversity of nations. And because there are far more nations than territories that could be organized as independent states, the borders of nations and states will never be wholly congruent.8 This lack of conformance is, as we will see, a major factor in the emergence of contested states.

International law does not prescribe that a population should have attained any particular level of readiness to qualify for independence. The UN’s celebrated Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 expressly stated that ‘[i]nadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence’ for dependent territories.

State practice over the 75 years since the adoption of the Montevideo Convention has steered clear of setting any minimum (or, for that matter, maximum) standard for population size. On the contrary, the world community takes the view that the smallness of its population may not deny an entity the right of independent statehood. This rule is fundamentally at odds with the mentality expressed by Adolf Hitler at the time of Nazi Germany’s annexation of Austria in 1938: ‘What can words like “independence” or “sovereignty” mean for a state of only six million?’9

The predictable result of the absence of any fixed limits is that population sizes among contemporary states vary enormously. The world’s most populous country by far is China, currently with an estimated 1,328,629,000 inhabitants. The others making up the top five are India (1,169,015,000), the US (305,826,000), Indonesia (231,627,000) and Brazil (191,790,000). At the opposite extreme we find the tiniest among the bantam-sized states (or, less charitably, toy states):10 Monaco (32,000 people), San Marino (30,000), Palau (19,000), Nauru (10,000) and Tuvalu (9,000). There are presently 13 states with fewer than 100,000 inhabitants each. Another eight are also under the 250,000 mark.11


A defined territory simply means that a state ‘must have some definite physical existence that marks it out clearly from its neighbours’.12 Borders serve as the confines of the area within which government powers are exercised.13

There need not be complete certainty over the extent of a state’s territory, though. Its frontiers may not be precisely demarcated and other states may even have claims to its territory.14 And since the boundaries of states may change, their territorial composition must be treated as a variable rather than an a priori ‘given’.15 Even the requirement that there should be ‘a consistent band of territory which is undeniably controlled by the government of the alleged state’ has on occasion been overlooked. When Bosnia and Croatia were first recognized as independent states in 1991, both lacked firm, territorial control in the civil war conditions then prevailing.16 The ‘State of Palestine’, unilaterally declared independent in 1988, did not control any segment of the territory its founders claimed but was nonetheless soon recognized by over 100 states (see Chapter 7).17 As already suggested, international law does not require that state frontiers should correspond with demographic divisions.18 In Africa, for instance, colonial and subsequent state boundaries were drawn without regard to ethno-political realities. In Europe and Asia state borders likewise cut through ethnic communities, in many cases causing endless conflicts between and within states.

As with population, there is no rule in international law prescribing the minimum (or maximum) size of a state’s territory.19 In the anti-colonial fervour of the previous century, the UN General Assembly specifically resolved that a dependent territory’s modest geophysical endowment had no bearing on its entitlement to sovereign statehood. In resolution 2709 of December 1970, for instance, the Assembly ‘[e]xpresses its conviction that the questions of territorial size, geographical isolation and limited resources should in no way delay the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples’. (The General Assembly evidently chose to disregard the concerns expressed by the UN Secretary-General in his 1968 annual report about the fate of sovereign entities that were exceptionally small in area, population and human and economic resources.)20

UN member states vary greatly in terms of land area. Russia is at the top of the league, extending over a gigantic 17,075,400 km2 (as against 22,402,200 of the former Soviet Union). The next five largest states by geographic size are much smaller than Russia but far outclass the rest: Canada, the US and China each exceeds 9,500,000 km2, followed by Brazil with 8,514,215 km2 and Australia with 7,741,220 km2. Then follow 23 states with sizes varying between three million and one million km2. The contrast with states at the other end of the scale is again stark, with no fewer than 31 countries covering land areas under 10,000 km2 each. The four smallest among them are San Marino (at 61 km2 exactly half the size of Disney World in Florida), Tuvalu (26), Nauru (21) and Monaco occupying a single square kilometer.21

The size of a state’s territory does not affect its sanctity under international law. This is clearly enshrined in the principle of the territorial integrity of the state and the accompanying obligation that article 2(4) of the UN Charter places on all members to refrain from the threat or use of force against the territorial integrity or political independence of any state.22

The formal acceptance of micro-states – in which a minute territory coincides with a miniscule population – into the international fold is a manifestation of the devaluation of the importance of territory in the 20th century. In the late 19th and early 20th centuries, the heyday of geopolitics, states were obsessed with the possession of physical territory based on commonly accepted notions of the material and political benefits flowing from such control. Boundaries between states were as a consequence sharply drawn. Towards the end of the previous century, as interdependence between states expanded, the salience of territory and borders declined. In the era of globalization, control of networks that reach across increasingly porous borders (involving finance, information, natural resources and so on) may be more important than control of physical space.23

International law does not provide guidelines on the economic viability of putative states either. It is, however, a matter that can have a material bearing on a state’s economic, social and political fortunes and could influence existing states’ response to an aspirant’s claims to statehood. In a sensible approach to the question of economic viability, Schroeder defined it as ‘the capability to exist and develop as a separate state in a world of highly economically interdependent states’. Viewed thus, economic viability focuses less on self-sufficiency (which cannot be complete for any modern state) than on the ability of the prospective state to function within the global economy. Among the factors that should then be considered are the entity’s ability to produce goods and services for the competitive global market; its geographic proximity to potential markets; the level of literacy and skills in the population; the extent of infrastructural development; and the ability to pursue policies aimed at sustainable economic growth.24 With states competing for market share in the global economy, territory is no longer the foundation for wealth creation; modern states do not have all the elements of a technologically advanced economy within their own borders.25 For small countries in particular, prosperity requires international free trade and liberal economic policies at home – the very antithesis of the protectionist and isolationist world of the 1930s.26


There is ‘a strong case for regarding government as the most important single criterion of statehood’, Crawford argued, ‘since all the others depend upon it’. Thus international law defines ‘territory’ in terms of the extent of government power exercised, or capable of being exercised, over some area. Government, or ‘effective government’, is furthermore a basis for the capacity to enter into relations with other states.27

What, then, is meant by ‘effective government’ in contemporary international law? A functional as opposed to a moral approach to the question of government effectiveness has traditionally been followed in international law. First, an entity can only be regarded as a state if it possesses a government ‘in general control of its territory, to the exclusion of other entities’. Second, there are no specific requirements in international law with respect to the nature and extent of such control, except that it should include ‘some degree of maintenance of law and order’, according to Crawford.28 The external dimension of government effectiveness refers to its capability ‘of controlling the affairs of the “state” in the international community’.29

For supporters of the declaratory theory of recognition, the key component of statehood is a government capable of maintaining control over its population and territory. If effective rule is present, the legitimacy of a government is said to be proven.30 This is a view long held by practitioners and observers of politics too. As British poet Alexander Pope wrote centuries ago: ‘For forms of government let fools contest; whate’er is best administered is best’. A contemporary endorsement comes from Huntington, who in a seminal study of 1968 argued that ‘[t]he most important political distinction among countries concerns not their form of government but their degree of government’.31

However, the latter half of the 20th century witnessed a tendency ‘to regard sovereignty for non-independent peoples as the paramount consideration, irrespective of administrative conditions’.32 The so-called AntiColonialists’ Charter of 1960, alluded to earlier, played a major role in devaluing traditional criteria of statehood.33 The wholesale decolonization of Africa in the 1960s proceeded under what Jackson called ‘a novel doctrine of negative sovereignty’. It allowed for the granting of ‘juridical statehood’ to scores of entities displaying scant evidence of ‘empirical statehood’.34

Seriously defective government capacity did not prevent the international recognition of Croatia and Bosnia and Herzegovina as they emerged from the turmoil that tore Yugoslavia apart. The patent collapse of government authority in Lebanon, Liberia and Sierra Leone in recent years did not jeopardize their status as juridical states either. Even anarchic Somalia, which has been without a central government for over 15 years, is still legally a state with a seat in the UN General Assembly. By contrast secessionist Somaliland, whose government maintains effective control and order in its territory, has its claims to statehood rejected by the world community. Likewise, effective government control has not managed to secure the Turkish Republic of Northern Cyprus or Taiwan the international recognition they seek.35 Clearly Bodin’s injunction that others ‘should have neither intercourse, commerce, nor alliance’ with ‘sovereigns’ that failed to provide order for their citizens – and the reverse of this rule – do not guide modern state practice.36

A new normative dimension to the question of government has gained considerable currency in recent years. The exercise of effective control over territory and people is no longer regarded as a sufficient test of a government’s legitimacy; what also matters is the form of authority and the treatment of the population.37 The development of the international human rights regime – already formalized in over two dozen international conventions and declarations – has given rise to the notion that the only internationally acceptable form of government in this day and age is Western-style liberal democracy. In 1992 Franck wrote hopefully of an ‘emerging right to democratic governance’.38 In a resolution adopted in 1999, the UN Human Rights Commission for the first time referred to a universal ‘right’ to democracy for all peoples. The European Community took a major step in this direction when laying down criteria for the recognition of successor states of the disintegrating Yugoslav Federation in the early 1990s. Democratic governance was one of them.39 Though radical, such notions are hardly novel: Rousseau had already advanced the ideal that a recognized state should be one expressing the general will.40

Although one could safely say that human rights and democracy have been universalized and institutionalized to the extent that they erode some state prerogatives traditionally associated with sovereignty,41 it may still be premature to claim a right to democracy under international law. As Horowitz pointed out, international law’s commitment to democracy has not been particularly deep or longstanding. This is because ‘valorizing a right to democratic governance would imperil the universality of international law’. The governing arrangements of dozens of states would be undercut by such a right, undermining international law’s ability to influence state behaviour.42 The aspiration among scholars and others to make democratic governance a global legal entitlement is thus some way from becoming a right enshrined in international law. If, however, we accept the view that all governments have an obligation to observe at least the core of basic human rights – regardless of whether they have ratified international human rights instruments43 – it becomes difficult to rule democratic governance out of the determination of statehood in the post-Cold War era.

Inter-state relations

Following Crawford, we will treat the capacity to enter into relations with other states as a consequence rather than a criterion of statehood. This capacity is a conflation of the requirements of government and independence. Although independence is a generally accepted prerequisite of statehood, it is not mentioned by name in the Montevideo Convention.44

To participate as fully as it chooses in international relations, an aspirant state should first be admitted to the international community of confirmed states. James maintained that the entrance requirement was simply one of constitutional independence, which he equated with sovereignty. For James constitutional independence meant that ‘a state’s constitution is not part of a larger constitutional arrangement’; it is a case of ‘not being contained, however loosely, within a wider constitutional scheme’. Only after an entity’s constitutional separateness has been established, can it become sovereign ‘and thus ready, if it and others wish it, to join in the usual kind of international activity’.45 But what if an entity enjoys constitutional independence yet fails to attract international recognition of its purported statehood? Some international lawyers argue that an aspirant state utterly lacking in formal international recognition ‘cannot demonstrate its capacity to enter into relations with other states and, from a functional point of view, cannot be described as a state’. A contrary view holds that while a totally unrecognized entity would find it difficult to exercise state-like rights and duties internationally, this would not in international law constitute a decisive argument against its statehood.46 As we will see, contested states’ lack of formal recognition severely circumscribes their participation in international relations.

Finally, although states ‘preeminently possess’ the capacity to enter into relations with each other, scores of non-state actors have long since engaged in relations with states, in many instances under the rules of international law.47 These include multilateral institutions like the UN and European Union (EU), international non-governmental organizations such as the Red Cross, multinational corporations and a motley band of less savoury actors including terrorist groups, crime syndicates and mercenaries.


Like independence, sovereignty does not feature in the Montevideo Convention as a formal requirement of statehood. It is unthinkable, though, to discuss statehood without regard to the notion of sovereignty. Consider the representative definition of a state formulated by the (Badinter) Arbitration Commission of the European Conference on Yugoslavia in 1991: ‘a community which consists of a territory and a population subject to an organized political authority…[and] is characterized by sovereignty’.48 Leaders of contemporary states may also concur with De Vattel’s assertion: ‘Of all the rights that can belong to a nation, sovereignty is doubtless the most precious’.49

Although there is no single, universally accepted meaning of the term ‘sovereignty’, international lawyers and political scientists commonly break the concept down into internal and external components.50

The crux of internal sovereignty was already stated in the Treaty of Westphalia of 1648. In articles 64 and 65 the signatories declared that

to prevent for the future any Differences…all and every one of the Electors, Princes and States of the Roman Empire, are so established and confirmed in their…free exercise of Territorial Right…that they never can or ought to be molested therein by any whomsoever upon any manner of pretence.51

In modern parlance internal sovereignty refers to ‘the state’s exclusive right or competence to determine the character of its own institutions, to ensure and provide for their operation, to enact laws of its own choice and ensure their respect’.52 No other national or international entity can therefore legitimately dictate the activities of a state that enjoys supreme legal authority.53 This, however, should not be interpreted as unqualified and exclusive power – a status no modern state has enjoyed in practice.54 What internal sovereignty does require is constitutional separateness or independence. To repeat James, a state can only be sovereign if it is not contained, however loosely, within a wider constitutional arrangement.55 These features are also expressed in Krasner’s notion of ‘Westphalian sovereignty’: external authority structures are excluded from the territory of a (sovereign) state, thus according the state both de jure independence and de facto autonomy.56

Independence is at the heart of external sovereignty too, construed as ‘the right of the state freely to determine its relations with other states or other entities without the restraint or control of another state’.57 This Grotian notion that the state is sovereign in relation to others when it is free from external control, is a foundation of modern international law.58

Crawford distinguished between ‘formal’ and ‘actual’ independence. Formal (or legal) independence exists where the powers of government in internal and external affairs are vested in the separate authorities of the state. Such independence is not compromised by constitutionally enforceable restrictions on a government’s freedom of action, treaty obligations, the presence of foreign military bases or other territorial concessions, membership of international organizations, or the exercise of certain governmental functions by bodies such as the EU.59 The critical consideration is whether these arrangements are based on the consent of the state involved.

Only two situations derogate from formal independence. The first is the existence, as a matter of international law, of ‘a special claim of right’ – regardless of consent – to the exercise of governmental powers. If a state claims the right to exercise such powers over another territory, the formal independence of that polity is called into question. A case in point is China’s claim of the right to rule Taiwan, which casts a shadow over the latter’s statehood. Not all claims of a right to exercise power seem to detract from formal independence, though. For years most of Israel’s neighbors denied its very right of existence, insisting that the right to rule that territory lay not with the Jews but the Palestinians. Despite this, Israel joined the UN and entered into diplomatic relations with scores of states. Another example is the Sahrawi Arab Democratic Republic, which has been given membership of the African Union (AU) even though Morocco not only claims the right to govern Western Sahara but is actually in control of most of the territory.

The second situation derogating from formal independence is discretionary power to intervene in the internal affairs of a putative state. France’s undefined powers of intervention in respect of Monaco, for instance, create doubts about the latter’s formal independence.60

When treated as a distinct legal or juridical status, sovereignty is an absolute category – not a relative condition or a variable. It does not fluctuate with the fortunes of political leaders, global trends or the ebb and flow of state power. ‘A state either is sovereign or it is not’, Holsti insisted. ‘It cannot be partly sovereign or have “eroded” sovereignty no matter how weak or ineffective it may be’. Sovereignty exists as long as there is exclusive legal authority, i.e. ‘the right to make and apply laws for the community’.61

Actual (or effective) independence was defined by Crawford as ‘the minimum degree of real governmental power at the disposal of the authorities of the putative State, necessary for it to qualify as “independent”’.62 This is what some political scientists refer to as de facto internal supremacy63 but is more commonly called autonomy. A relative and informal category, autonomy involves the freedom of states to make policy choices or set their own rules. Autonomy is increasingly constrained by such trends as the mounting inability of governments to control the flows of capital, people, ideas, crime, disease, etc. in a ‘borderless’ world. The declining ability of public authorities to regulate such cross-border interactions in the age of globalization restricts what Krasner termed the interdependence sovereignty of states.64 In addition the governmental power (autonomy) that states possess in international law has contracted over time. There are various jus cogens norms that bind all states, such as those restricting the use of force and outlawing genocide, slavery and servitude. The growth of an international human rights regime and increasing ecological awareness have the same effect.65 When a state’s autonomy is reduced, it does not mean that its legal authority is being eroded.66

Four situations do not derogate from actual (not to mention formal) independence, namely the diminutive size and resources of an aspirant state; its political and ideological links with other states; belligerent occupation by another state (for instance, Iraq’s occupation of Kuwait in the early 1990s did not affect the continuity of the latter’s statehood); and illegal intervention (as witnessed in the Soviet invasions of Hungary and Czechoslovakia).67

Of more immediate relevance for our purposes are the three situations that do undermine actual independence. The first of these, substantial illegality of origin, arises when an entity comes into existence in violation of basic rules of international law. This could constitute grounds for the nonrecognition of such an entity’s claims to statehood.68

One of the most fundamental rules of international law – indeed a jus cogens norm – concerns the illegal use of force. The prohibition of the threat or use of force against the political independence or territorial integrity of any state is enshrined in, among other international instruments, the UN Charter under article 2(4). The world community has repeatedly refused to accept the legal validity of situations created by the illegal use of force. It is thus firmly established in international law that territory may not be validly acquired by the illegal resort to force. Where such an entity claims statehood, there is a presumption against its independence;69 this applied to the state of Manchukuo established by Japan on Chinese soil. South Africa’s four homeland states point to another illegal origin, namely racial discrimination. The entities were given independence by Pretoria in pursuance of the policy of apartheid. International law expressly forbids the practice of racial discrimination. The self-proclaimed state of Rhodesia, also governed by a white minority, fell foul of the same rule as well as the broader principle of selfdetermination.70

Entities created under belligerent occupation, the second situation derogating from effective independence, is closely related to the first. Here too is a strong presumption in international law against the actual independence of a state thus established. It is regarded as ‘no more than the agent of the belligerent occupant’. The classic interwar example of an entity created under belligerent occupation is again Manchukuo. Other examples that resemble Manchukuo were Japan’s granting of independence to Burma in 1942 when the latter was occupied by the imperial power, and the creation of the Azerbaijan independence movement in northern Iran under Soviet occupation in 1945–6.71

There is considerable overlap between the latter category and the third, which deals with substantial external control of a putative state. The general rule is that an entity which, although displaying the formal features of independence, ‘is in substance subject to foreign domination and control’, is not regarded as ‘independent’ for the purposes of statehood under international law.72 Let us briefly consider types of non-independent ‘states’.

In the case of protected states or protectorates the very designation already tells us that the entities concerned fall under substantial external control. Examples are the British protectorate of Kelantan (1909–57) in what is now Malaysia, and the Bechuanaland protectorate which in 1966 became independent as Botswana.73

Puppet states refer to ‘nominal sovereigns under effective foreign control, especially in cases where the establishment of the puppet State is intended as a cloak for manifest illegality’. Apart from being established illegally, by the threat or use of armed force, a puppet regime lacks the support of the vast majority of the population it claims to govern; it is subject to foreign direction or control in important matters; and key positions are occupied by nationals of the dominant state. For the entire duration of its putative statehood (1932–45) Manchukuo was regarded by the international community as acting at the behest of its creator and patron, Japan, and was hence denied formal recognition.74 Imperial Japan fared no better with ‘independent’ Burma, mentioned above.75 Much the same situation obtained in two wartime ‘states’ established by Nazi Germany in occupied Europe. Slovakia became a nominally independent part of Czechoslovakia, under German protection, from 1939 to 1945. The puppet state of Croatia was created on occupied Yugoslav territory in 1941, returning to the fold in 1944.76

The Turkish Republic of Northern Cyprus, created in the wake of Turkey’s invasion of the island in 1974, is the product of an illegal use of force. The Turkish entity in Cyprus is regarded as a puppet state by the international community and its statehood has not been recognized by any country other than Turkey.77

The final, less familiar type of non-independent state involves a purported grant of colonial independence. This unusual situation obtains where a metropolitan power awards its colony only partial independence or where real control has evidently not been transferred. The status of Syria and Lebanon between 1942 and 1946, following their being granted ‘independence’ by the Free French administration, falls in this category.78

Jackson’s concise definition of a sovereign state provides a neat summary of our discussion thus far: ‘an authority that is supreme in relation to all other authorities in the same territorial jurisdiction, and that is independent of all foreign authorities’. The preceding inquiry has highlighted what Jackson portrayed as the Janus-faced character of sovereign statehood: facing inward, the sovereign is the supreme authority in the state; facing outward, the sovereign is in a position of independence vis-à-vis other states.79

Important legal implications flow from states’ sovereignty in international law. They enjoy legal equality, which means equality of legal rights and duties. Among their duties are to respect the legal personality, independence and territorial integrity of other states, live in peace with them, and refrain from interfering in their domestic affairs.80 Although sovereignty is supposed to serve as a ‘no trespassing’ sign,81 foreign interference has all along been a feature of international relations. Given the contradiction between this formal rule (derived from sovereignty) and the practice of states, sovereignty has not surprisingly been portrayed as ‘organized hypocrisy’.82

International law’s recognition of the sovereign equality of states recalls De Vattel’s celebrated 18th century dictum: ‘A dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom’.83 However, factual inequality between states – some being more substantial and capable than others – has always characterized international relations. So great are the variations today that a ‘new type of sovereign state’ has emerged out of European colonial empires, especially in Africa: one that is ‘independent in law but insubstantial in reality and materially dependent on other states for its welfare’. Jackson termed them ‘quasi-states’, possessing juridical statehood but being sorely deficient in empirical statehood.84 The former refers to the rights and responsibilities accorded to states by international law, whereas empirical statehood deals with the capacity of the state to ensure internal well-being and stability and enforce its external independence.85 Expressed in terms of Krasner’s categories of sovereignty, we are contrasting international legal sovereignty (the status of an entity in the international system flowing from the formal recognition of its statehood) with domestic sovereignty (the organization and effectiveness of public authority in a state).86

Quasi-states and their foreign support infrastructure displayed what Jackson termed ‘a novel doctrine of negative sovereignty’ designed specifically for the decolonization of Third World entities. Every colony had a categorical right to self-determination à la independence (juridical statehood) solely by virtue of its colonial status, regardless of its domestic capabilities (empirical statehood). International society (primarily the major powers) was in turn expected to foster the independence of the former colonies and guarantee their survival as independent states, however disorganized or illegitimate the governments of these ‘ramshackle states’ may be.87 Positive sovereignty, enjoyed by developed states, presupposed capabilities enabling governments ‘to be their own masters’, provide political goods to their citizens and maintain relations with foreign governments.88

Decolonization, then, produced a new category of sovereign entities displaying a distinctively artificial statehood in which inherent positive qualities no longer served as the basis of sovereignty. The exclusive emphasis on juridical statehood meant that sovereignty was henceforth ‘not acquired internally but conferred externally’.89 Bull and Watson referred to them as ‘states that are not states in the strict sense, but only by courtesy’.90 A further implication of the concept of statehood becoming so ‘juridicized’ is that a ‘protracted anarchy’ can be recognized as a state; entities that have by all reasonable standards ceased to function as states are guaranteed their statehood.91 To put it differently, ‘once a state is duly baptized and confirmed as a sovereign’, the world community relaxes or even ignores the requirement of domestic political supremacy, to quote Fowler and Bunck.92 Consider the recent cases of Somalia, Liberia and Sierra Leone.

In all the years before the Second World War there had been no special international regime catering for small or weak states. What would in an earlier era have provided prima facie grounds for denying membership of the international community of states, has under the new sovereignty regime become an entitlement to material assistance from abroad, what Jackson depicted as ‘sovereignty plus’. The modern world community is therefore not merely a civil association of all states, but also ‘a joint enterprise association to assist its poorer members’ by practising ‘affirmative action’ (for example trade concessions, debt relief and development aid).93

These contrasts lead us to another patently double standard. It is between states ‘whose legal international personality masks a general state of domestic collapse’, and a group of ‘fully-functioning and self-contained states… quarantined as pariahs, excluded from the mainstream channels of international diplomacy, existing in conditions beyond the pale of normal international intercourse’.94 The first category of course refers to what Jackson depicted as quasi-states, whereas the other class consists of contested states. The latter collection of ‘would-be states in a legal fog’95 are mostly far stronger in empirical statehood than scores of today’s quasistates but they are excluded from conventional inter-state relations because the world community does not recognize their rights of statehood. This brings us to the vexed question of recognition as a criterion of statehood.


Since ours is not a study in international law per se, there is no need to join what Crawford called ‘the great debate’ over the nature of the recognition of states, waged between the proponents of the constitutive and declaratory theories or doctrines respectively.96 We need to note the contending views only briefly, before focusing on state practice and the implications of non-recognition.

Under the declaratory theory an entity, once it displays the minimum characteristics distinctive of statehood (a territory, population, government and a capacity to maintain relations with other states), is automatically a state and an international subject. ‘Recognition can only mark the willingness of other states to have relations with it; absence of recognition does not of itself deny statehood’. The constitutive theory by contrast maintains that an entity meeting these basic requirements ‘is not a state and thus not a member of the international community until it is “constituted” as such through the actions of other members of the international community recognising it as a state’. Without recognition an entity is not a state and cannot have international personality.97

Although the declaratory doctrine is supposed to be predominant in scholarly circles and also in state practice, the very existence of contested states points to the influence of the constitutive theory in world politics. A ‘near affirmation’ of the constitutive doctrine is found in the Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union, adopted by the European Community (EC) in 1991, and in the Europeans’ accompanying Declaration on Yugoslavia. Going well beyond the factual Montevideo criteria, the EC decided that recognition of new states emerging from the disintegration of existing countries in the region would depend also on the nature of their political structures and practices. The aspirant states were expected to respect established borders, observe human rights and democracy, uphold the rule of law, guarantee minority rights, commit themselves to settle disputes peacefully, and accept nuclear nonproliferation. While the EC was not necessarily suggesting that an entity could not be a state until these conditions were complied with, member states gave notice that they ‘would not treat a territory as a state’98 until it abided by norms of behavior judged essential for the community of European states.99 The US has followed a similar approach in relation to the republics of the disbanded Soviet Union. This dynamic indicates a new chapter in the doctrine of recognition and the formation of states in international law: Allen described it as ‘a more prescriptive approach, premised on the ideological aspirations of the predominant international actors’.100

Such prescriptiveness is not new. The major European powers conditioned the recognition of states emerging from the Ottoman Empire in the 19th century on guarantees of the civil and political rights of their religious minorities. This applied, among others, to Greece, Romania, Serbia and Montenegro. After the First World War the great powers again demanded the protection of minority rights as a prerequisite for the recognition of East and Central European states and their membership of the League of Nations.101 Since the end of the Cold War the international trend towards ‘conditioned’ recognition has become more pronounced with external demands for democratic institutions and processes, the protection of minority rights and even prescriptions about economic management.102

The application of these ‘subjective’ criteria confirms Fawcett’s observation that recognition is ‘a political act of government’ and ‘a matter not of duty but of discretion’.103 In exercising their discretion political officeholders take a range of factors into account, including what Clapham called ‘current international mythologies of legitimate statehood’.104

The recognition we have been dealing with is of a de jure nature and should be distinguished from de facto recognition. The latter may be granted when the recognizing state judges that an aspirant state meets some but not all the requirements of statehood. Hence the notion that de facto recognition ‘indicates general reluctance on the part of the recognizing state to bring about the whole range of legal effects that would follow from a standard de jure recognition’.105 De facto recognition is provisional and may be withdrawn if the remaining criteria are not complied with. Should these conditions be satisfied, de jure recognition may follow.

The granting of de jure recognition to a state can take many forms. It could consist of a formal statement (for example congratulating a new state on attaining independence), an official letter to the newly recognized state, a declaration before a national court, or it could be inferred from the establishment of full diplomatic relations. Acts that usually do not imply recognition include participation in a multilateral conference with an unrecognized state, the appointment of representatives not enjoying diplomatic status, the maintenance of unofficial and informal contacts, and the institution of extradition procedures.106

What is the legal status of polities that are denied de jure recognition but otherwise comply with the formal criteria of statehood? In terms of the widely held declaratory theory recognition is not a precondition for an aspirant state becoming a subject of international law; an entity should merely be able to demonstrate that it is not subordinate to another authority, meaning it should enjoy sovereignty.107 Given their problematic international status due to collective non-recognition, it would be safer to say that contested states are ‘to a limited extent endowed with international legal personality and thus the capacity to become bearers of rights and obligations’.108 Non-recognizing states, according to Crawford, are not legally permitted to act as if the entity in question was not a state. In practice states do not regard others lacking formal recognition as being exempt from international law. They moreover interact with such entities, even to the extent of joint membership of inter-governmental organizations.109 This is not to deny that full recognition can have major legal, political and material benefits for a state, such as becoming a party to international agreements, opening diplomatic representation, gaining access to the public goods distributed by the likes of the World Bank and the International Monetary Fund, and making the state’s voice heard in multilateral forums.110

We also need to deal with the matter of collective recognition extended by inter-governmental organizations. None is more important than the UN, the universal forum of states. The UN Charter mentions the word ‘state’ no less than 34 times – without providing any definition thereof – and stipulates that only states qualify for membership of the world body.111 Requiring a substantive decision by the Security Council (meaning the approval of all five permanent members) plus a two-thirds majority in the General Assembly, admission to full UN membership is tantamount to collective de jure recognition.112 The community of states thereby signals its readiness to treat the new member as a full-fledged state with all the attendant rights, duties and responsibilities, both within the UN and beyond. Admission to the UN is also likely to facilitate the entry of the new state into other multilateral organizations.113 Not surprisingly UN membership is commonly viewed as the ‘birth certificate’ of a state.114 Far from applying the formal (Montevideo) qualifications of statehood to the host of applicants in the 1960s – specifically that of effective government – the UN opted for ‘casual recognition at entry’. The new international sovereignty regime, dedicated to the elimination of colonialism, would not have permitted anything less than ‘run-of-the-mill’ admission-cum-recognition.115 Admission to membership of regional organizations such as the EU, North Atlantic Treaty Organization (NATO), Organization (previously Conference) for Security and Cooperation in Europe (OSCE) and AU – usually following on UN membership – amounts to further joint de jure recognition of a new entrant’s statehood.116 Although collective recognition is the hallmark of confirmed statehood, allowance should be made for states that choose to remain outside the UN, like Switzerland did until 2002, without compromising their full-fledged statehood.

There is, conversely, the reality of collective non-recognition of a prospective state. The League of Nations, for instance, refused to recognize the independent statehood of Manchukuo. UN member states collectively decided not to recognize the purported statehood of Katanga, Biafra, Rhodesia, South Africa’s four homeland states and the Turkish Republic of Northern Cyprus. These instances of joint non-recognition, we noted earlier, were based on a set of peremptory norms (jus cogens) that variously prohibit aggression, the systematic violation of human rights, and the denial of self-determination.117 It would be appropriate to speak of ‘regimes of non-recognition’ in these cases, meaning that non-recognition was deliberately extended ‘from a unilateral basis to a broader representation of the international community’. Such regimes are formed when states wish to prevent the formalization of a legal status, such as an entity’s claim of statehood.118

The question of non-recognition also arises, in different form, in the rare instance of an entity not claiming to be a state, even if it satisfies the basic criteria of statehood. This is the situation of Taiwan. Crawford’s conclusion is straightforward: ‘Taiwan is not a State, because it does not claim to be’.119 In such a case there ought not to be any need for other states to decide individually or collectively on extending de jure recognition. What complicates matters, though, is that Taiwan insists on exercising the rights that states enjoy in international law.

Attributes and categories of contested statehood

Since contested statehood is marked by a deficit in de jure recognition, we need to elaborate on the reasons for the denial of such recognition. We begin by measuring contested states against the standard requirements of statehood in international law.

First, all contested states have settled populations, but some controversies arise. In the case of secessionist entities, questions are often asked about the inhabitants’ actual support for unilaterally breaking away from original states. A different problem that applies in Palestine and Western Sahara is the absence of large numbers of the population; these people are stranded in refugee camps in neighboring countries. These are admittedly political rather than legal concerns.

Turning to territory, in the second place, we have recorded that final, settled borders are not required for statehood. The boundaries of contested states are, however, disputed in a very fundamental way: since their right of existence as separate, independent states is challenged, their borders are not internationally recognized as legal and legitimate frontiers separating them from other states. Instead, the territories in contention are widely regarded as integral parts of existing states.

Third, the governments of many contested states may well comply with the criterion of effectiveness in terms of their control over territory and people and some even live up to democratic standards. The challenge facing the rulers of contested states is that their right to govern is widely disputed – a corollary of the rejection of these states’ right of independent existence. So even if it manifestly possesses empirical statehood, a contested state still lacks juridical statehood conferred from outside through de jure recognition.

Contested states in the fourth instance typically have the ability and desire to enter into the standard array of relations (diplomatic, economic, cultural and military) with full-fledged states. Confirmed states, however, deny them the opportunity to engage in normal international interactions by refusing them de jure recognition.

The fifth element of statehood, sovereignty, is also hotly disputed in the case of contested states. They as a rule enjoy internal sovereignty, having detached themselves from any larger (foreign) constitutional arrangement and formalized their independent status through their own constitutions. However, confirmed states challenge the self-declared states’ exclusive right to create and operate their own institutions of government separate from their original states. In international law, the latter’s insistence on a right to rule the break-away territories derogate from the purported states’ formal independence. What detracts from their actual independence in international law is the substantially illegal origins of several contested states: they owe their existence to the violation of peremptory international norms such as those prohibiting aggression and racial discrimination. What further compromises the actual independence of many contested states, is their subjection to control or strong influence from outside or at least heavy dependence on a foreign country. That external party is usually the creator or patron state, like Turkey in the case of Northern Cyprus.

While these five grounds already explain why contested states lack de jure recognition, other factors support the international rejection of their claims to statehood. The general commitment to maintaining the territorial integrity of states – a hallowed principle of international law – provides a powerful argument against recognizing break-away states. It is a longstanding fear among states that legitimizing secession could set off an unstoppable process of balkanization of existing states into ever smaller and more unviable new polities. What is more, such fragmentation is in many cases bound to be accompanied by violent domestic conflict, as in former Yugoslavia. Another very real obstacle faced by many a contested state is the original state’s implacable opposition to the former’s separate existence. The central state’s objection to the new entity could take the form of overt military action or subversion and will as a matter of course include attempts to prevent the contested state from engaging in conventional state-like international interactions. In so doing the original country becomes what will be called the veto state of the new contested entity. Scores of other states are likely to take their cue from the original state when reacting to the contested entity. Horowitz referred to this as the international law doctrine ‘forbidding recognition of secessionist units whose establishment is being resisted by the central government’.120

Given the range of external challenges confronting contested states, we can agree with Kurtulus that they ‘have a legal status that is uncertain, an international standing that is indefinite, a legal existence that is often relative, and a security situation that is at times precarious’.121

While formal international recognition is the most obvious component of statehood lacking among today’s contested states, it must be reiterated that the recognition deficit varies. Several levels of formal recognition, based on existing state practice, can be distinguished; in practice a purported state can fall in more than one category. De facto recognition is omitted here because all contested states experience some degree of factual recognition.

Titular recognition, first, refers to the wide formal acceptance (at multilateral level) of an entity’s right of or title to statehood, as in the cases of Palestine and Western Sahara. They are, however, severely constrained by external powers in exercising the domestic rights and responsibilities of modern states. Because Palestine and Western Sahara possess the juridical shell of statehood but lack the empirical substance thereof, they are states in little more than name. The international contestation over their conceded statehood lies in the two entities’ failure to form functioning states. They also lack the formal birth certificate of confirmed statehood, namely full UN membership.

Partial recognition means that a wannabe state receives de jure recognition from a minority of existing states and lacks UN membership. Kosovo and Taiwan are current examples. In the 1930s and early 1940s the Japanese ‘puppet’ state of Manchukuo fitted the category. Apart from Japan, it was recognized by only Germany, Italy, Poland, Hungary and the Vatican and was excluded from the League of Nations.122

The third, paltry recognition, occurs when a contested state is recognized by only a handful of existing countries, as Nigeria’s break-away region of Biafra managed in the late 1960s. Tanzania, Zambia, Gabon, the Ivory Coast and Haiti formally recognized the entity’s self-declared statehood.123 The lowest form of paltry recognition is where a contested state gains formal recognition from a single confirmed state that is not its creator or patron state. The Republic of Ichkeria (Chechnya) was recognized by Afghanistan only.

If its patron or creator state is the only confirmed state recognizing a contested state, we can refer to patron recognition. This fourth form of recognition applies to the Turkish Republic of Northern Cyprus, which has been recognized by Turkey only. South Africa’s former homeland states of Transkei, Bophuthatswana, Venda and Ciskei, fell partly in this category because South Africa was the only confirmed state granting them de jure recognition. In August 2008 South Ossetia and Abkhazia joined these ranks when Russia recognized both.

Abkhazia, South Ossetia and South Africa’s Bantustans each had one foot in a fifth category, namely peer recognition where contested states recognize each other. The two remaining Eurasian entities of Nagorno Karabagh and Transdniestria have peer recognition only.

Finally, zero recognition means that an entity’s purported statehood is not formally recognized by either confirmed states or fellow contested states (if the latter exist at the time). Somaliland is in this position, with Katanga and Rhodesia two earlier examples.

Apart from the key characteristic of a lack of formal international recognition, we will be applying also other criteria for including a presumptive state in this inquiry. It must have declared its independence, typically in a unilateral fashion or in conjunction with its creator or patron state, or at least asserted its right to be treated as full-fledged state by others; the entity tries to play the role of a confirmed state in world politics; it meets most of the Montevideo criteria of statehood or, if not, enjoys a generally recognized right of statehood; and it has been in existence for at least three years. The latter requirement on the one hand precludes wannabe states of a ‘flash in the pan’ variety and on the other ensures that we have enough substantive information to understand the domestic and international conduct of the chosen entities.

Alternative designations

The subjects of our investigation deserve to be called ‘states’ because nearly all of them satisfy the basic, formal requirements of statehood in international law save for recognition, they aspire to confirmed statehood, and they in many ways act like typical states. It is equally appropriate that we qualify their statehood because of its highly disputed nature and their consequent relegation to life in international limbo. As Bull noted, a polity that claims sovereign statehood ‘but cannot assert this right in practice, is not a state properly so called’.124 For that reason the concept of contested states has been introduced and is preferable to several alternatives.

  • Non- or unrecognized states imply that the polities concerned enjoy no recognition at all. We have already identified different levels of formal recognition found in practice. In addition all aspirant states receive some de facto
  • The term de facto states used by Pegg, Lynch and Bahcheli et al125 is problematic because it suggests that these entities are denied de jure recognition, receiving de facto recognition only. That is not necessarily the case.
  • A statelike entity, as conceived by King,126 has a population and a government exercising sovereign control over a territory ‘but without the imprimatur of international recognition’. This designation tends to overlook the possibility of limited de jure recognition if not de facto recognition as well.
  • The notion of quasi-states is widely associated with Jackson’s work, which we have cited extensively. Deficient empirical statehood – a feature of quasi-states – is not necessarily characteristic of contested states; they lack juridical statehood. Another application of the term quasi-states – also inappropriate for our purposes – is to defenceless states of earlier eras, such as the Venetian Republic, Malta and Belgium.127 However, Kølsto, for one, applied the designation quasi-states to ‘unrecognized, de facto states’.128
  • Nominal states would not be helpful either because these are typically Global South countries enveloped – like Jackson’s quasi-states – in a shell of juridical statehood but lacking substantive government capacity.
  • To refer to pseudo-states would be derogatory, suggesting that the polities concerned are all sham or unauthentic creations as opposed to ‘genuine’ states. True, several contested states (Northern Cyprus and South Africa’s homeland states, among others) were artificial, illegitimate creations, but not all of them have such dubious origins (consider Somaliland, for instance). On the other hand several confirmed states enjoying de jure recognition are ‘sham’ states in terms of empirical statehood. What Cohen conceived as pseudo-states – ‘ravaged by civil wars, unable to maintain a minimum of social cohesion’129 – also resemble Jackson’s quasi-states.
  • States-within-states is too wide a concept because it includes national subunits that may not have any aspirations to sovereign statehood – even if they maintain effective control over territory and possess state-like political structures.130
  • Entities labelled as near-states display many attributes of state sovereignty ‘but lack full standing as states’. The deficit would typically relate to one of the Montevideo criteria of statehood – not specifically that of international recognition. These sui generis entities constitute a mixed bag, including the Vatican and the Palestinian territories.131 As such the term is not precise enough for our purposes.
  • Nations without states likewise refer to cultural communities agitating for either group autonomy or secession and statehood as expressions of self-determination.132 Contested states, however, demand more than autonomy within an existing state.
  • Areas of special sovereignty, as Somaliland has been depicted,133 fail to capture the ‘stateness’ of the entities under consideration.
  • Non-state actors would be a singularly inappropriate designation because it too denies the ‘stateness’ of the polities we are studying. Moreover, a range of inter-governmental and non-governmental actors can be included under the rubric of non-state actors. Contested states have more in common with (confirmed) states and identify with them rather than with non-state entities.
  • Proto– and semi-states hold some attraction, but fail to highlight the contested nature of our entities’ purported statehood.


The main category of actors in this inquiry has intentionally been called ‘states’ to underscore their desire for internationally recognized statehood and to acknowledge their compliance with the standard criteria of statehood. But we cannot simply follow the ‘science of duckology’ and declare that ‘if a creature quacks like a duck, waddles like a duck and paddles like a duck, it must be duck’. The subjects of our inquiry indeed speak like states and act like states but are not accepted into the fold of confirmed states. They lack conventional international recognition as a result of serious challenges to their right of statehood or in some cases the exercise of a conceded right of statehood. Hence the qualification ‘contested’ statehood.

This introductory chapter identified three other categories of actors prominent in the international politics of contested statehood. One group comprises the confirmed states constituting the international community. Another consists of what could variously be termed the creator, patron or protector states of each contested state. Where the latter has indeed been created by another state – as witnessed in Manchukuo and South Africa’s four homeland states – it is appropriate to speak of an external creator that would typically play the roles of patron and protector of the contested state too. Where a contested state is the product of unilateral secession there is no creator state involved, but there may well be a patron or protector state that is vital to the survival of the pretender state. The last type of actor is the veto state, usually the entity from which the contested state has seceded. The veto state thus represents the ancien régime from which the contested state unilaterally divorced itself. Its veto role is focused on obstructing the contested entity’s bid to gain international acceptance. Put differently, the veto state is the contested state’s principal nemesis and blackballer, bent on keeping its illegitimate offspring cabined and confined so as to force it back into the fold. Veto states could also have their own patron states that provide crucial support in resisting contested states. Greece’s backing of the Republic of Cyprus against Northern Cyprus is a case in point. In this instance Greece is simultaneously playing the role of external veto state.


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