Are the conditions of statehood sufficient? an argument in favour of popular sovereignty as an additional condition of statehood.
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In this article, the author proposes an idea of popular sovereignty as an additional condition for statehood. The author firstly evaluates the two main theories of statehood in international law, mainly the constitutive and declarative theory, and explains their deficiencies. Constitutive theory leads to the relativity of states. According to the declaratory theory, which was codified in the Montevideo Convention (1933) and is thus currently positive international law, the requirements for statehood are: a) a permanent population, b) a defined territory, c) a government and d) capacity to enter into relations with other states. The first three conditions are empirical and necessary and refer to the socio-political process of the creation of states. The fourth condition is problematic for two reasons. Firstly, it is logically circular, and secondly, it cannot be saved by reference to a main source of international law, namely state practice. Not only state practice cannot currently explain the fourth condition, but it is also logically impossible for it to do so because it falls in the trap of moving from conditions of statehood (recognition of a state), which are the conditions set by public international law for an entity to become a state, to conditions of recognition (recognition as a state), which are conditions based on which states decide whether to recognize other entities as states. If the fourth condition is abandoned, there seems to be a gap because the three remaining conditions are empirical, not legal. Thus, they explain the creation of an entity (non-legal term), not the creation of a state. They do not explain how that entity is elevated to a state, which is a full subject of international law. The author explains why there is a reason for a fourth legal condition to exist and suggests that the fourth condition ought to be popular sovereignty. Therefore, the author’s argument is a deontological, not an ontological one, as it makes a suggestion regarding how international law ought to be, not about how international law actually is. The idea of popular sovereignty the author is suggesting is a very thin notion of popular sovereignty and is merely the historical fact that at some point in time, a permanent population living in an identifiable territory under a government voted for a constitution freely while the four standard requirements for freedom and individual autonomy were being satisfied. Further on, whether popular sovereignty is a necessary or sufficient condition for statehood is discussed. Then, the author tries to ground this suggestion of popular sovereignty on Buchanan’s deontological argument regarding the goal of international law: the goal of international law ought to be justice, in the sense of realization of basic human rights. Finally, it is made clear that although in this theory a moral value, namely protection of basic human rights, becomes the primary goal of international law, this theory does not step into Natural Law.
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