The Criteria for Statehood: the Aspect of Constitutional Law
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Abstract
Traditionally the state is defined in terms of three criteria: the people, the territory and the government. G. Jellinek and M. Riomeris were among the first to name these criteria. What is typical about this position is that the sovereignty of the state and the sovereignty of the people may not coincide. Thus the scholars do not raise the question about the legitimacy of the government. Where state is able to ensure that its orders are abided by, it is held that the degree of power is sufficient. The concept precludes non–democratic regimes from discussion about legitimacy of the power.
The modern doctrine of constitutionalism bases the government and the legitimacy of governmental decisions on the principle of the sovereignty of the people. The stance holds that the government has to receive the power from the sole sovereign i. e. the people. This type of authorization is only possible through the democratic procedure. Therefore, when we require legitimacy of the state, we identify the concept of the sovereignty of people and the concept of the sovereignty of the state and thus indirectly point to the democratic political regime, which is the sole guarantor of manifestation of the sovereignty of the nation.
Without changing the established traditional trinomial structure the author proposes that when identifying the criteria of the statehood the criteria of the power as the criteria of the legitimate power should be regarded, which equals to the authorization of the sovereign people to act for its benefit.
From the point of view of the constitutional doctrine, international recognition may not be regarded as criterion which expresses statehood. International recognition only guarantees that the state will be treated on the basis of well established international norms.
Even though international recognition does not solve the key issue for to be or not to be the state, it may nevertheless be important, as states which do not represent sovereignty of the nation will not be treated as democratic in the international community and this subsequently may determine their fate.
The modern doctrine of constitutionalism bases the government and the legitimacy of governmental decisions on the principle of the sovereignty of the people. The stance holds that the government has to receive the power from the sole sovereign i. e. the people. This type of authorization is only possible through the democratic procedure. Therefore, when we require legitimacy of the state, we identify the concept of the sovereignty of people and the concept of the sovereignty of the state and thus indirectly point to the democratic political regime, which is the sole guarantor of manifestation of the sovereignty of the nation.
Without changing the established traditional trinomial structure the author proposes that when identifying the criteria of the statehood the criteria of the power as the criteria of the legitimate power should be regarded, which equals to the authorization of the sovereign people to act for its benefit.
From the point of view of the constitutional doctrine, international recognition may not be regarded as criterion which expresses statehood. International recognition only guarantees that the state will be treated on the basis of well established international norms.
Even though international recognition does not solve the key issue for to be or not to be the state, it may nevertheless be important, as states which do not represent sovereignty of the nation will not be treated as democratic in the international community and this subsequently may determine their fate.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
