The statehood of ?collapsed' states in Public International Law
| Autor | Pablo Moscoso de la Cuba |
| Páginas | 121-174 |
The statehood of ‘collapsed’ states
in Public International Law
Pablo Moscoso de la Cuba
1. Introduction
Over the last few years the international community has been witnessing a
phenomenon commonly referred to as ‘State failure’ or ‘State collapse’, which has
featured the disintegration of governmental structures in association with grave and
intense internal armed conflicts, to the point that the social organization of society
what international law considers the government of the State, a legal condition for
statehood – has almost, or in the case of Somalia totally, disappeared from the ground.
Such a loss of effective control that the government exercises over the population
and territory of the State – the other legal conditions for statehood – pose several
complex international legal questions. First and foremost, from a formal perspective,
the issue is raised of whether a State that looses one of its constitutive elements of
statehood continues to be a State under International Law. Such a question may
only be answered after considering the international legal conditions for statehood,
as well as the way current international law has dealt with the creation, continuity
and extinction of States.
If entities suffering from State ‘failure’, ‘collapse’ or ‘disintegration’ and referred to as
‘failed’, ‘collapsed’ or ‘disintegrated’ States continue to be States in an international
legal sense, then the juridical consequences that the lack of effective government
create on their condition of States and their international legal personality have to be
identified and analysed.
Our point of departure will therefore be to analyze ‘State collapse’ and the ‘collapsed’
State from a formal, legal perspective, which will allow us to determine both whether
Agenda Internacional
Año XVIII, N° 29, 2011, pp. 121-174
ISSN 1027-6750
122 Pablo Moscoso de la Cuba
the entities concerned continue to be States and the international legal consequences
of such a phenomenon over the statehood of the concerned entities. Although several
different approaches could be taken and multiple other legal questions arise from
the phenomenon of ‘State collapse’, we will limit ourselves to the analysis of the
statehood of ‘collapsed’ or ‘disintegrated’ States in the above mentioned manner
since, in our understanding, that is the initial legal problem that such entities present
from an international law perspective.
Section One below will be dedicated to the analysis of statehood in current
international law, in particular we will deal with the international legal criteria for
statehood and the topics of creation, continuity and extinction of States. Our goal in
that Section will be to establish with certainty the relevant international norms and
principles applicable to establish that an entity is a State, as well as the circumstances
in which they originate, are transformed but continue their international legal
personality and become extinct.
On Section Two we will analyse the phenomenon of State ‘failure’ or ‘collapse’,
beginning with the concept of a ‘failed’ or ‘collapsed’ State generally in use and
the conceptual and terminological difficulties that such concepts entail. We will
then propose a legal approach to such a definition, in order for it be more apt
to an international law analysis and application. The same Section will end with
some sample cases of State ‘collapse’ that will help us understand more the way the
phenomenon occurs in practice.
Section Three of this paper will be dedicated to the analysis of the statehood of
‘collapsed’ or ‘disintegrated’ States in public international law, in particular the
determination of their continuity as subjects of international law and the legal
consequences of the lack of effective government on the statehood of such entities.
Finally, our conclusions will be included at the end of this study.
2. Statehood in current International Law
Every State has a beginning, a moment in which its existence under international
law can be identified and from which it enjoys a full international legal personality.
That moment is commonly accepted to begin with when what are known as the
constitutive elements of statehood are verified in practice. During its existence,
a State may suffer transformations in those constitutive elements which raise
questions under international law regarding its condition of State, its international
obligations and its relations with other subjects of international law. Finally, under
certain circumstances, a State may seize to exist as such, which, in turn, will raise
several complex international legal questions; such extinction of a State can also be
e statehood of ‘collapsed’ states in Public International Law 123
understood in terms of the permanent disappearance in practice of what makes a
State a State under international law, that is, its constitutive elements.
This Section will cover the main issues regarding Statehood in current international
law taking into particular consideration two features that permeate the Law on
this field. The first one being the relationship between the constitutive elements of
Statehood and the process of creation, transformation and extinction of States, since
such phenomena can be explained in reference to the said elements. The second,
more subtle feature, is that of the dynamic of the State in time, that is, when referring
to the creation, transformation and extinction of States we are referring to different,
successive, moments of the existence of a State. Logically, transformation can only
occur after the creation of a State; similarly, its extinction will follow the creation
and, if such is the case, the previous transformation of a State. This does not mean
that every State will go through the exact same process or that all States will end
up seizing to exist at some predictable time in the future; it means that considering
the creation, transformation and extinction of a State as part of the dynamic of the
State in time will help us identify the different characteristics and effects that such
processes have on the existence of a State under international law.
2.1. The creation of States and their constitutive elements
A State will exist as such under international law when its constitutive elements are
verified in practice. Such elements are a population, a territory and a government.1
This means that the existence of a State is in principle a matter of fact and that
the recognition of a State has no constitutive effect. However, as we will see below,
international law plays a central role in determining if an entity is a State, reason why
the mere factual verification of the constitutive elements is not enough to determine
whether an entity enjoys statehood or not, particularly when the creation of a State
is contrary to international law.
2.1.1. Population
A State must have a population in order to be considered as such under international
law. The population of a State is, naturally, a human group that inhabits permanently
1 The constitutive elements of statehood are generally considered to be contained in the Montevideo
Convention on Rights and Duties of States of 1933. Indeed, Article 1 of the Convention states that, a State
as a person of international law should posses a permanent population, a defined territory, a government and
the capacity to enter into relations with the other states, although the latter, as we will argue below, is part of
the definition of government and not a separate element. Montevideo Convention on Rights and Duties of
States of 26 February 1933. Article 1. For further reference see: CRAWFORD, J. The Creation of States in
International Law. New York: Oxford University Press, 2006, pp. 96 et ss.
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