On July 25, 2025, the I.C.J. Advisory Opinion declared that “In the view of the court, once a State is established, the disappearance of one of its constituent elements would not necessarily entail the loss of its statehood.” (see ICJ response to the United Nations General Assembly regarding obligation of States in respect of climate change: *Sea Law)
1.Expressed Narrow language - Sea Law
2.Implied General Language – Land Law
3.A submerged or Emerged State
Roomfor ‘State continuity’ in international law? A constitutionalist perspective
(Ineta Ziemele)
Overview of reasons for scepticism over a distinction between State continuity and State succession
Professor Crawford has argued that international law: embodies a fundamental distinction between State continuity and State succession: that is to say, between cases where the ‘same’ State can be said to continue to exist despite sometimes drastic changes in its government, its territory or its people and cases where one State has replaced another with respect to a certain territory and people. The law of State succession is predicated on this distinction.
State Continuity in the Absence of Government: The Underlying Rationale in International Law
(Yejoon Rim*)
Abstract The traditional criteria for statehood assume that a state must have a government that enables state effectiveness. In the absence of a separate criterion for state continuity, the ‘con stitutive elements’ for state creation have been regarded as also ‘continuative elements’ that preserve a state from extinction. However, practice has shown that a state can continue to exist even in the absence of government, which implies that simple assumptions on state continuity, paralleling rationale developed in the discourse of state creation, are inadequate as an explanatory framework for the situation and should thus be reconsidered. To this end, the article examines the underlying rationale for state continuity in the absence of a government, drawing a distinction between constitutive and continuative elements of statehood. Further, it suggests reframing the element of government as an entitlement belonging to the people and apprehending the state as a legally framed concept that cannot be simply determined by its effectiveness. In so doing, the article explores the role of international law in supporting the legal continuity of the state beyond effectiveness.
1 Introduction
According to Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States, "[t]he 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." The Montevideo Convention is generally a starting point for discussing statehood as ‘a textual representation of the traditional criteria [for statehood] recognized by customary international law’. The elements detailed in the Montevideo Convention are regarded as, prima facie, constituting the ‘formal’ definition of the state in international law, and this stance has remained unchanged, notwithstanding the fact that the composition of states in the international community has radically changed since its articulation in 1933. Although the fourth element has been criticized for not being unique to states, but, rather, a consequence of statehood, the first three elements articulated in the Montevideo Convention do indeed correspond to commonly accepted component elements constituting the definition of state since the 19th century. Thus, the concept of ‘state’ employed in international law is generally recognized to contain, and be constituted of, population, territory and government. Meanwhile, it is assumed that the essential feature of the concept of the state embodied in the Montevideo Convention is grounded in the notion of ‘effectiveness’. According to George Abi-Saab, the effectiveness of these elements is what integrates them into an operative whole and determines the state’s being taken into consideration by international law. The existence of these elements is considered a factual issue that is objectively discernible, reflecting the traditional understanding of statehood as essentially a question of ‘fact’ dependent upon effectiveness. Since the factual exercise of power over the population and the territory has been regarded as a prerequisite for the attribution of legal status of statehood, ‘government’ has been regarded as a central and indispensable element representing the effectiveness of statehood.
What happens, then, if one of the elements in the definition of statehood becomes entirely absent? Considering that component elements substantively construct the conceptual framework of the state applicable during its continued existence, later deficiency of the elements would logically result in the discontinuance of the existence of the state being defined as such. Traditional doctrine generally equates the elements required for the continuation of statehood with the constitutive elements required for an entity to obtain statehood and thus seeks to simplify the problem by affirming that a state becomes extinct with the disappearance of one of its constitutive elements. Thus, if the entire territory is submerged, the whole population emigrates or the state falls into protracted anarchy without even the shell of a government, it would be logical to assume that the state becomes extinct. In practice, however, and contrary to this seemingly logical conclusion, it has been witnessed that a state may in fact sustain its legal existence even for a prolonged period in the total absence of government, which is one of the constitutive elements of statehood and also one of the component elements in the concept of state in international law. It is well known that the Federal Republic of Somalia, although it fell into protracted anarchy without any authority claiming to be the government of the state, continued to exist during the period when it experienced a total absence of government in the 1990s and also in the subsequent transitional phase characterized by a lack of effectiveness. The case of Somalia indicates that the state can continue even in the complete absence of government for a decade. At the same time, it presents an inconsistency with the traditional understanding of the state as comprising three elements – territory, population and government – based on the principle of effectiveness under international law. Meanwhile, in so far as an internally effective government is often referred to as representing the effectiveness of statehood, the traditional perception embodied in the notion of ‘statehood as effectiveness’ is also challenged. Accordingly, state continuity in the absence of government prompts the questions of how this situation can be explained in international legal discourse and what it implies in terms of our understanding of statehood.
Obligations of States in respect of Climate Change Summary of the Advisory Opinion of 23 July 2025
Page 17.
E. Obligations of States under the law of the sea and related issues (paras. 336-368)
2. Obligations of States in relation to sea level rise and related issues
The Court also notes that several participants argued that sea level rise also poses a significant threat to the territorial integrity and thus to the very statehood of small island States. In the view of the Court, once a State is established, the disappearance of one of its constituent elements would not necessarily entail the loss of its statehood.
Vienna Convention on Succession of States in respect of Treaties Done at Vienna on 23 August 1978
The States Parties to the present Convention, Considering the profound transformation of the international community brought about by the decolonization process,
Article 34
Succession of States in cases of separation of parts of a State
1.When a part or parts of the territory of a State separate to form one or more States, whether or not the predecessor State continues to exist:
(a) any treaty in force at the date of the succession of States in respect of the entire territory of the predecessor State continues in force in respect of each successor State so formed;
(b) any treaty in force at the date of the succession of States in respect only of that part of the territory of the predecessor State which has become a successor State continues in force in respect of that successor State alone.
2.Paragraph 1 does not apply if:
(a) the States concerned otherwise agree;
(b) or it appears from the treaty or is otherwise established that the application of the treaty in respect of the successor State would be incompatible with the object and purpose of the treaty or would radically change the conditions for its operation.