STATEHOOD AS A CONCEPT

A State is the single most important entity that forms the basis of international law.
Friedman opined that the reason for this position is that the world is totally organized on
the basis of co-existence of States and any significant development on the international
plane will be a result of State action.
1
Considering the fact that States are the most integral
entities of international law, the need to understand what constitutes a State becomes
essential. A State is a legal person recognized by international law that has the ability to
make claims when there is a breach of international law, ability to enter into treaties and
enjoys privileges and immunities from national jurisdiction.
2
Mere existence of legal
personality does not confer the title of statehood as most internationally recognized
entities on the international plane possess this attribute and it is not specific to a State.
The aspect regarding what constitutes a state and possesses the characteristics of statehood
is regarded as a concept laid down by the law.
3
This is an aspect of traditional international
law. However, in modern international law, both, factual as well as legal criteria, determine
the concept of statehood and its acceptance by nation states.
4
Considering the traditional
approach towards the criteria of statehood, the Montevideo Convention on Rights and
Duties of State, 1933 provides the most widely accepted criteria of statehood in the
international plane. The provisions of this convention laid down four major qualifications
that constitute a state as laid down herein:
A permanent population
A defined territory
An effective government
The capacity to enter into relations with other states.
5

The ideology laid down in the Convention continues to form the crux of
determining the status of a State in the international scenario. In addition to the
criteria laid down in 1933 which nation states adhere to in order to determine the
Statehood of an entity, modern international law demands other attributes which
have gained popularity as essential constituents of statehood. These other
attributes which have been popularized include self-determination and recognition
by other states.
6


1
JAMES CRAWFORD, BROWNLIES PRINCIPLES OF PUBLIC INTERNATIONAL LAW 116 (8
th
ed. 2012).
2
Id. at 115.
3
Id. at 127.
4
MALCOLM N. SHAW, INTERNATIONAL LAW 139 (4
th
ed. 1995).
5
Montevideo Convention on Rights and Duties of States, art. 1, 1933.
6
SHAW, supra note 4 at 144-147


ISLAMIC STATE AND ITS CHARACTERISTICS
The ideology of the Islamic State originates from the concept of political Islam
which seeks to unite religion and state. It advocates the formation of a
government that idealizes and administers an Islamic system of administration.
This involves the implementation of Sharia law as an Islamic form of democracy.
7

One such group which [has] developed over the last decade and has created
ripples in Iraq and Syria is the Islamic State of Iraq and Syria, popularly known as
ISIS. ISIS is a Sunni jihadist group which aims at creating a caliphatea single,
transnational Islamic state based on Sharia. The group emerged from al-Qaeda in
Iraq.
8
It aspires to bring within its control much of the Muslim-inhabited regions of
the world|,| including Iraq, Syria, Jordan, Israel, Palestine, Lebanon, Cyprus, and
areas in southern Turkey. ISIS is an insurgent group which was formed in April
2013, growing out of al-Qaeda in Iraq and is considered as one of the most
dangerous jihadist groups. It has been recognised as a terrorist organisation by the
Western nations|,| including United States, United Kingdom, Australia, Canada
and Saudi Arabia. This belligerent organisation is led by Abu Bakr al-Baghdadi.
9
In
early 2014, ISIS has established control over parts of Iraq and Syria. The goal of
the ISIS is to establish a Sunni Muslim caliphate across Syria, Iraq, Jordan, Israel
and other parts of the Middle East. The group's methods are exceptionally brutal.
The group consisting of a political militia has gained popular support of the Sunni
community. It has adhered to forms of illegal fund raising by involving in
extortion, use of military resources in the regions captured by it and sale of oil
from Syria.
10

On June 29, 2014, the group changed its name, eliminating Iraq and Syria from its
name, giving rise to Islamic State referring to itself as a state in itself and
declaring the region occupied by it in Iraq and Syria as a new Caliphate or State.
Such declaration by the Islamic State leaves behind a question as to whether this
occupation of territory in Iraq and Syria by the Islamic State constitutes a state
within the scope of public international law.
WHETHER ISLAMIC STATE IS A STATE IN INTERNATIONAL LAW?
A State is the most effective component of international law and international
relations. To consider a legal person as a state is a matter of law as well as fact.
Moreover, the concept of State is not rigid|,| but is ever evolving to embody

7
BASSAM TIBI, THE CHALLENGE OF FUNDAMENTALISM, Political Islam and New World Order 158,159 (1998).
8
Zachary Laub and Jonathan Masters, Islamic State in Iraq and Syria (Aug 8, 2014.),
http://www.cfr.org/iraq/islamic-state-iraq-syria/p14811
9
BBC News, Syria Iraq: The Islamic State Militant Group (Aug. 2, 2014), http://m.bbc.com/news/world-middle-
east-24179084
10
Dan Hinkel and Lolly Bowean, What Is ISIS, ISIL and Islamic State (Aug. 20, 2014),
http://www.chicagotribune.com/news/chi-what-is-isis-isil-islamic-state-20140820-story.html


various forms and attributes to constitute a state. This criterion of statehood is
enunciated in the principles laid down by jurists, the Montevideo Convention and
modern ideas that constitute essential factors for determining statehood. All these
areas are to be scrutinized to determine whether the Islamic State has the
attributes of a state in the international plane.
James Crawford, in his book, The Creation of States in International Law, aptly
calls Article 1 of the Convention the "best known formulation of the basic criteria
for statehood.
11
The state as a person of international law should possess the
following qualifications: (a) a permanent population; (b) a defined territory; (c)
government; and (d) capacity to enter into relations with the other states. There
is a need to venture into each of these qualifications in association with the
characteristics of the Islamic State to examine whether the organization is similar
to a State in the scope of international law.
The first attribute of statehood as enunciated by the Montevideo Convention is the
presence of a permanent population. Permanent population includes the presence
of a stable population within the region|,| which forms the physical basis of a
state. The size of the population is not a matter of essence in determining
statehood.
12
The Islamic State has conquered parts of Iraq and Syria conferring
control on the population in these regions which the organization has self-
proclaimed as a state. This population consists of a large number of Christians,
Sunni Muslims and foreign nationals who constitute a part of the Islamic State by
owing their allegiance to the group. The Christian population, by virtue of them
being ill-treated, are resistant to the Islamic State and have fled from the region
to Kurdistan
13
, while the Sunni Muslims are in approval of the rule [by] of Islamic
State. Islamic State supporters forming the militia, being nationals of another
state, create further uncertainty. In addition to the above categories, a large
population in Iraq captured by the Islamic State has been caused to move out of
Iraq.
14
Therefore, the nature of the population is rather [instable] unstable and
uncertain in the Islamic State controlled regions.
Defined territory is another essential feature of a state as prescribed by the
Convention of 1933. Defined territory requires for the presence of a particular
territorial base on which the political community can establish control and does

11
Thomas D. Grant, Defining Statehood: The Montevideo Convention and Its Discontents, 37 Colum. J.
Transnat'l L., 434 (1998-1999).
12
CRAWFORD, supra note 1 at 128.
13
Alroy Menezes, ISIS Captures Largest Christian Town in Iraq and several Others, (Aug. 7,
2014),http:/m.ibtimes.com/isis-captures-largest-christian-town-iraq-several-others-thousands-minorities-flee-
1651618.
14
New York Times, Iraqis Driven From Their Homes By ISIS, (Aug. 14, 2014),
http://www.nytimes.com/interactive/2014/06/12/world/middleeast/the-iraq-isis-conflict-in-maps-photos-
and-video.html?ref=middleeast


not mandate a definite declaration of settled boundaries.
15
However, it provides
for a reasonably stable community present in certain area|s|.
16
Islamic State has
captured border regions of Iraq and Syria, early this year, and continues to
implement military advances into various regions. Having captured Anbar in
January, Mosul and Tikrit in June and Mount Sinjar in August in Iraq alone, and
parts of Eastern Syria|,| including al-Raqqa in August, the boundaries of the
Islamic State are widening each day with no specific population to determine its
existence.
17
These borders are varying with Iraqi Government control and United
States interference causing the lack of a definite area to be claimed by Islamic
State as its territory or region.
18
There exists no definite claim on behalf of the
Islamic State constituting well defined boundaries.
A state is a stable political community in a particular territory which excludes any
other form of administration to exercise control in the said territory. This stable
political environment is envisaged through the prevalence of an effective
government. An effective government is one with a centralized Legislature and
Executive.
19
Islamic State lacks both these components and is a pure Islamic Militia
involved in aggressive forms of invading the sovereignty of other nations, such as
Iraq and Syria, through its insurgent activities. Islamic State has not worked
towards the establishment of a formal legislative structure|,| but continues to
control the population by brutal implementation of the Sharia Law. The
effectiveness of this organization is hard to determine in the current scenario due
its over-zealous aim of bringing within its control Iraq and a larger part of the
Levant region.
20
In addition to the traditional ideology regarding effective
government, international law has evolved in this regard to employ a widened
definition [to] of what may constitute effectiveness in this regard. The same
entails the interest and the purpose of the governance to gauge the effectiveness
of the Government,
21
ensuring that no government functions with an aim to cause
adverse effects on its population. This broadened scope of an effective
government strongly opposes the credibility of the Islamic State as a state as its
functions and form of administration repels the original inhabitants of the region
by causing them to evacuate, flee or subject to rigid religious principles; excessive
human rights violation under their reign and instability of functioning, in general.

15
SHAW, supra note 4 at 140,141.
16
CRAWFORD, supra note 1 at 128.
17
Menezes, supra note 13.
18
Nour Malas and Tamar el-Ghosashy, Iraq Crisis: Islamic State Militants Driven From Mosul Dam, (Aug. 19,
2014), http://online.wsj.com/articles/iraq-crisis-islamic-state-militants-driven-from-mosul-dam-
1408363291?tesla=y
19
CRAWFORD, supra note 1 at 129.
20
Zachary Laub and Jonathan Masters, Islamic State in Iraq and Syria (Aug 8, 2014.),
21
CRAWFORD, supra note 1 at 129.


Analyzing the most discussed criterion of statehood proposed by the Montevideo
Convention, the capacity to enter into relations with other states, it is essential
that independence is an attribute interlinked with the said criteria.
22
Guppenheim
lays down that the essence of statehood arises when there exists a sole authority
which is independent and disallows the interference of any other legal order in its
affairs. To constitute a state, the entity should possess organs|,| including
executive and legislature, with a nationality of their own, carries on foreign
relations through its organs and has a separate legal system.
23
This attribute of a
state is like the ring to a bell in relation to effective government, as they are
inseparable components of one another and are intertwined in the most intricate
form wherein independence is a direct result of effective governance. Considering
the intimate connection between independence and effective governance,
24

Islamic State is disqualified in regard of being independent by the very reason of
its non-implementation of an effective form of governance. Moreover, the ability
to enter into treaties or agreements with foreign nations is a two-way route which
is clearly blocked in regard to Islamic State as most nations recognize them as a
terrorist organization and not a State in any regard.
Having discussed the traditional formula for the constitution of statehood laid
down by the Montevideo Convention on Rights and Duties of States, 1933, it has to
be observed that the scope of such criterion has expanded over the years. The
four attributes laid down by the Convention which include territory, population,
effective government and capacity to enter into agreements with foreign nations
continue to form the primary element and groundwork of criteria of statehood.
This is [undisputable] indisputable. However, modern international law provides
other characteristics which form an integral part [in] of the entity being
conferred the position of a state. These developments|,| which have occurred
over the years, after the formulation of the international statute in this regard,
include aspects which states have recognized with time. Two major attributes in
this aspect include self-determination and recognition.
25

Self-determination has formed one of the basic essentials of statehood in the
recent times. Criterion of effective government enumerated by the Convention
developed giving rise to the development of statehood. This demands not merely
stability and effectiveness of government, but more importantly the
representative and democratic character of the government.
26
Though this
requirement stemmed out of prevention of nations from being exploited and
colonized by Super Powers and to allow some sort of concession to the criteria of

22
SHAW, supra note 4 at 145.
23
CRAWFORD, supra note 1 at 130.
24
CRAWFORD, supra note 1 at 130.
25
SHAW, supra note 4 at 144-147.
26
Id. at 144.


effectiveness when there exists democratic character of the government, it has
become essential in other aspects as well. Considering Islamic States attributes in
relation to self-determination, it fails to satisfy these demands as the group,
though claims to be an Islamic democracy, it does not engulf the essence of a
democratic nature, causing it to fail as a state.
Recognition, forming another attribute of statehood, is the process of providing
legal significance to an entity as a state based on factual situations, thus
extending rights and liabilities to the recognized state by the state recognizing it.
Recognition thus provides strong evidence that the criteria relevant for statehood
has been adhered to.
27
A state has rights and liabilities in the international sphere
only if it has been recognized. Islamic state, in this regard, has not been
recognized by any State. Most states including US, UK, Canada and Saudi Arabia
have recognized it as a terrorist organization or an insurgent group. States are
hesitant to recognize it due to the very nature of the activity the group indulges
in. having received no recognition, it fails to have any attribute of statehood.
Comparing the nature of the Islamic State to analyze whether it contains
attributes of statehood, the above discussed parameters based on traditional and
modern criteria provide a rather negative outlook.
CONCLUSION
Islamic State is an entity which has gained popularity in the past year owing to its
acquisition of regions of Iraq and Syria. This group, often recognized as a
belligerent organization, self-proclaimed itself as a State. However, as we have
ventured into the various characteristics of statehood and that of the Islamic
State, there persists a clear non adherence of the Islamic State with the essentials
of statehood. Traditional criteria based on the Montevideo Convention on Rights
and Duties of States, 1933 provides four qualifications for a state- permanent
population, definite territory, effective government and capacity to enter into
foreign relations with other states. Islamic State does not satisfy any of the above
as it is a fairly new entity whose status and borders are altered due to high
resistance. Moreover, it does not entail any attribute of systematic administration
or intent to form a well-organized society or a civilization. In addition to the
above disqualification of the insurgent group as having any attribute of a state,
Islamic State does not satisfy the additional criteria provided by modern
international law. Modern criteria of statehood such as self-determination and
recognition paint the picture to provide the clearest image. Islamic State, by
virtue of all attributes being analyzed, including the modern criteria, have
absolutely no resemblance to a state. Providing the status of a state on Islamic
State is not feasible in the near future and the entire nature and scope of the

27
Id. at 146.


entity has to evolve and stabilize for it to be considered for evaluation to include
it as a state in international law.









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