Chapter IV

                               Incidence and Continuity of Statehood


                                          1. Introductory


The state is a type of legal person recognized by international law. Yet, since there are other
types of legal person so recognized—as emerges from the previous chapter—the possession of legal
personality is not in itself a sufficient mark of statehood. Moreover, the exercise of legal
capacities is a normal consequence, rather than conclusive evidence, of legal personality: a puppet
state may have all the paraphernalia of separate personality and yet be little more than an agency
for another power. It is sometimes said that statehood is a question of fact, meaning that it is
not a question of law. However, as lawyers are usually asking if an entity is a state with a
specific legal claim or function in view, it is pointless to confuse issues of law with the
difficulties, which undoubtedly exist, of applying the legal principles to the facts and of
discovering the important facts in the first place. The criteria of statehood are laid down by law.
If it were not so, then statehood would produce the same type of structural defect that has been
detected in certain types of doctrine concerning nationality.[1] In other words, a state would be
able by its own unfettered discretion to contract out of duties owed to another state simply by
refusing to characterize the oblige as a state. Thus a readiness to ignore the law may be disguised
by a plea of freedom in relation to a key concept, determinant of many particular rights and
duties, like statehood or nationality. In starting from this position it will be apparent that the
writer has in part anticipated the results of the examination of recognition in the next chapter.
Nevertheless, as a matter of presentation the question whether recognition by other states is an
additional determinant will be ignored in the present chapter.[2] The subject of state succession
is also excluded from the discussion, and the subject-matter conventionally described by that label
is considered in Chapter XXVIII. However, when the continuity of states is considered some attempt
will be made to distinguish this from state succession.[3]

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[1]  See infra, ch. XVIII.

[2]  Certain special aspects of recognition and its congenor, acquiescence, are noticed infra, at
pp. 159-61.

[3] See infra, pp. 82 ff.