Are the conditions of statehood sufficient? An argument in favour of popular sovereignty as an additional requirement for statehood, on the grounds of justice as a moral foundation of international law
The Montevideo Convention of the Rights and Duties of States (1933) codified the declarative theory of statehood as accepted as part of customary international law and laid down the five requirements for statehood which are often summarized as 'the principle of effectivity': (a) permanent population, (b) defined territory, (c) organised power (government) and (d) ability to enter into relations with other states. The aim of this article is to discuss the possibility of an additional requirement: popular sovereignty in a specific historic sense. I will also discuss whether this requirement should be regarded as a necessary and/or sufficient condition for statehood. The importance of this additional condition will be explained in the light of the legitimacy of exercise of power. Furthermore, it will be argued that this additional requirement may help promote the suggested primary goal of international law, that being justice (instead of peace as easily inferred by the UN Charter) in the specific sense of the protection of basic human rights, as suggested by Buchanan in Justice, Legitimacy and Self-Determination. It has to be noted that both main points, namely Buchanan’s suggested notion of justice as the primary goal of international law and my main argument of popular sovereignty in a specific historical sense as a requirement of statehood are not to be regarded as relating to any form of Natural law Theory. It is not the case that I maintain that any international norm which violates justice as ethical foundation of international law is, because of that reason, legally invalid. Although the Legal Positivism vs Natural Law Theory is certainly not the focus of this paper, if one wishes to regard Legal Positivism and Natural Law Theory as mutually exclusive, my suggestion falls entirely under the umbrella of Legal Positivism for reasons that will be explained.
