Does a state have a “right to exist”?

It’s a question that has been posed quite often in the past 20-30 years, though, realistically, it has been posed since states have existed in the first place. The relevance is self-evident: whether a state has a right to exist or not ultimately determines, for many, whether or not it becomes “acceptable” to advocate for the creation or destruction of particular states.

After all, if states have a fundamental “right to exist,” then every state-creating process ought to be sacrosanct, and impediments towards this goal become immoral and unjust. On the other hand, if states do not possess a fundamental “right to exist,” then their “need to exist” becomes solely predicated on utility, not moral imperatives, which, in turn, means there are justifiable grounds for its destruction if such an outcome is preferable to another state.

Declarative theory of statehood

Supporters of the notion of the “right to exist” might be surprised to know that it has no legal basis in international law. Or, really, in any law anywhere. The 1933 Montevideo Convention on the Rights and Duties of States¹—the defining modern piece of international law from which we derive the principle of declarative statehood—states in Article 1:

The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter into relations with other states.

In the subsequent Article 3, which is the second closest article of the Convention to potentially refer to a right to exist, the Convention then states:

The political existence of the state is independent of recognition by the other states. Even before recognition, the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and define the jurisdiction and competence of its courts. The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.

Even a basic reading of both articles understands that there is no implied “right to exist” in the wording. Rather, a state, as defined by the Montevideo Convention, merely exists if it is capable of satisfying in fact the four aforementioned factors – thus, the establishment of statehood is, functionally, a performative act, in that for a state to exist, it must perform and possess certain constitutive factors and realities to be deemed in existence. Such a principle is fundamentally opposed to the notion of a “right to exist,” as such a right presupposes the existence of a natural or legal framework that grants said status of statehood a priori to the de facto establishment of the state. But we’ll get to that in a bit.

Constitutive theory of statehood

As the Montevideo Convention, which forms the basis of the declarative theory of statehood in international law, has failed to provide a legal framework for the so-called “right to exist,” let’s now look at its alternative: the constitutive theory of statehood.

Like the Montevideo Convention, the constitutive theory of statehood has its roots in a treaty—specifically, in the 1815 Final Act of the Congress of Vienna². As Holsti (2004) states, the vast majority of polities/states in Europe in the early 19th century had experienced very unstable political existences—sometimes recognized, sometimes not—and due to the chaotic nature of the French Revolutionary Wars and Napoleonic Wars, many states had popped up into existence or been wiped out in a period of just 23 years. The Congress of Vienna, which sought to put an end to the chaos of the Napoleonic Era, thereby took it upon itself to “reorder” Europe—and did.

By 1814, there existed no fewer than 60 states that would’ve met modern standards of statehood. After the Final Act, the total number of recognized states in Europe was 39. What changed? Simply put, the Congress of Vienna established, in practice if not in explicit words, the constitutive theory of statehood, by which a state is deemed to exist if and only if it has been recognized by at least one other state. As Holsti puts it:

…If there was any doubt about the issue [of statehood] in the eighteenth century, the Congress of Vienna firmly established that polities would not enjoy the rights of sovereignty until recognized by other powers, meaning primarily the great powers of the day. (128)

To put it even more simply: a state does not exist until it is recognized to exist by another, already recognized and existing state. This, of course, brings with it a slew of problems, but that is not the question at hand. Rather, what matters is that, as per the constitutive theory of statehood, states do not have the essential right to exist – they must be recognized to exist, whereupon they enjoy the full rights of a sovereign state. As with the declarative theory, this one also does not provide a natural, deistic, or legal framework through which a state has an inherent and immutable right to exist.

Well, then, one might then ask, what about the right to self-determination? I’m glad you asked.

The right to self-determination

On the face of it, without examining the exact language of the United Nations Charter³ and other treaties, one might be led to believe that because of the right to self-determination, a state has a right to exist—after all, if the people of a polity want to exist independently, then should it not be allowed to do so?

Well, international law says no, not really.

First, let’s examine the exact language from the United Nations Charter’s Article 1, which states that the purpose of the United Nations is:

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace…

This is followed up on in Article 55 of the same Charter, which then states:

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote:

"Higher standards of living, full employment, and conditions of economic and social progress and development.

Solutions to international economic, social, health, and related problems, and international cultural and educational cooperation.

Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”

None of which, again, appears to suggest that the principle of self-determination ipso facto confers a “right to exist” for these polities that wish for independence. Nor do other modern treaties and instruments of international law seem to suggest as such, either. In the 1966 International Covenant on Civil and Political Rights⁴, Article 1 states:

All peoples have the right of self-determination. By that right they freely determine their political status and freely pursue their economic, social and cultural development.

This, unlike the others, does seem to provide the strongest evidence for a people’s right to a state, as close to an explicit “right to exist” as has been seen thus far. Yet, even here, the language falls just short, for Article 1 of the ICCPR only enshrines the right to self-determination and the pursuit of their desired political status, but does not confer them the right to succeed or to have a state. This is echoed in the Friendly Relations Declaration of 1970⁵, where the UN resolution states:

By virtue of the principle of equal rights and self-determination of peoples enshrined in the Charter of the United Nations, all peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter.

And yet, at the same time, the right to territorial integrity of existing states is also reaffirmed:

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.

Thus, while the first part, and particularly subsequent paragraphs calling for states to “promote the realization of the principle of self-determination,” does seem to be solid evidence of a potential “right to exist,” the latter paragraph, in its reaffirming of the principle of territorial integrity, shuts the door on any such right by establishing that even if a polity wished to carve out its own independent state from an existing state, they only have the right to try, not to succeed.

A similar inference can be made in the ICJ in the Kosovo Advisory Opinion (2010)⁶, wherein, in paragraph 84, the International Court of Justice ruled that Kosovo’s declaration of independence did not violate international law – because no such prohibition exists in international law – but at no point couched it under the principle of a legal, natural, or deistic right to success or to exist as a state. Rather, even in that situation, the ICJ formulated its opinion solely on the grounds of existing and relevant international law, conventions, resolutions, and treaties.

But, then, if all of these laws and organizations do not recognize the fundamental principle of the “right to exist,” then where does it come from? The answer: Joseph Ernest Renan.

Ernest Renan

Joseph Ernest Renan, or Ernest Renan, as he came to be more famously known, was a 19th-century scholar who was particularly active in Semitic scholarship and Orientalism. However, his most famous contribution could be considered to have been the principle of the “right to exist”: the understanding that a state has, by default, a right to exist within the international community. It is by no means his creation alone—Thomas Paine and others made reference to “rights to exist” as well, though Paine referred to a moral right attributed to representative governments, and others similarly were referring to nations in rebellion against an imperial power. Renan, however, can be considered the closest thing to a theorist about a state’s right to exist, which is not altogether odd given that, in his famous 1882 lecture, “What is a Nation?”⁷, he concludes:

So long as this moral consciousness [called a nation] gives proof of its strength by the sacrifices which demand the abdication of the individual to the advantage of the community, it is legitimate and has the right to exist.

So, case closed, right? This appears to be a definitive statement by a theorist advocating for the idea of states having a right to exist on the basis of not law, nor deist philosophy, or natural frameworks, right? Well, no, not quite.

A more precise reading firstly notes that what Renan advocates is not a right to exist for states, but for nations. Is there a difference, one might ask? Of course! In political science, it is fairly common knowledge that nations and states are two different concepts entirely. Indeed, it is often summarized for new PoliSci students as, “A nation can exist with or without a state, while a state can have one or many nations.” An example of this is the ethnic minorities that exist worldwide—the Catalans, the Naso-Teribe, the Miao people, the Tatars, etc. All of these are nations in that they possess a shared ethnocultural identity. Yet, not one of these has its own state—rather, they share a state with many other nations. This is not incompatible with Renan’s own thoughts on the matter as described in “What is a Nation?” either. As he himself states further back in his lecture:

A nation is a soul, a spiritual principle. Two things, which in truth are but one, constitute this soul or spiritual principle. One lies in the past, one in the present. One is the possession in common of a rich legacy of memories; the other is present-day consent, the desire to live together, the will to perpetuate the value of the heritage that one has received in an undivided form.

Furthermore, it is important to note that Renan does differentiate between the concept of a state and that of a nation in this same lecture, pointing out that “States' frontiers would then follow the fluctuations of science.” Thus, it is not a meaningless quibble to point out that Renan, in the first quote, is merely referring to a nation’s right to exist, not that of a state. Indeed, he even goes so far as to question whether a nation has the right to use its own existence as the basis for the right to expansion, saying:

According to the ideas that I am outlining to you, a nation has no more right than a king does to say to a province: 'You belong to me, I am seizing you.

Thus, it would appear to be that the most logical conclusion one can draw from evaluating Renan, the champion of the “right to exist” concept, and his works is that while nations may have the right to exist, states do not – and even when a nation is constituted, it possesses no essential rights to forceful expansion. By which we can further conclude that, on the basis of international law and relevant theories therein, states do not have the right to exist.

Final thoughts

One might wonder at this point—or perhaps the question arose earlier—why this matter deserves contemplation. After all, who cares whether states have an essential “right to exist” or not? Well, states do – particularly those whose establishing roots are of questionable validity or whose current actions are causing people to wonder whether or not the continued existence of that state serves the greater good (or the individual good).

Indeed, when we hear the question, “Do you agree with X or Y’s right to exist?” We need to realize that this is not an argument made either in good faith or in obedience to international law or any accepted theory of international relations or political science. The argument they are making via that question is fundamentally a moral question. Behind that armor-piercing question is no intention to debate, but rather to shame. There is no intent to justify through law, but to challenge the law. The idea behind the question is to suggest that the person being questioned is immoral or bigoted for suggesting that the state in question is not deserving of existing, yet this is a logical fallacy, for we have demonstrated that there is no basis for the concept of the “right to exist.”

We must further consider that the attempt to appeal to morality is fundamentally flawed and the playbook of the desperate, for moral arguments, particularly in this day and age, are predicated upon the belief in moral universality. And while many individuals may believe in a universal morality, it is by no means a unanimous perspective, and the principles of moral and cultural relativism further complicate the matter. Consequently, if one were to be asked, “Does a state have a right to exist?” on this moral premise, one could just as easily say, “No, because I don’t believe they do,” and that would be just as valid an argument as saying they do. Hardly a solid foundation for establishing the right to exist of anything, much less a state.

We need to understand a basic premise: states are not people – they are comprised of people. States do not have rights in the way their citizens do—only whatever agreed-upon principles of international law and diplomacy that they and other states choose to uphold in the moment. If a state collapses tomorrow, the tragedy is not in the loss of that state, but rather in the effects such a collapse will have on its people. Moreover, the loss of a state will inevitably lead to the establishment or expansion of another state to occupy that geographical location, and those people who used to live in the previous state will now live in the new one. Thus, states cannot be considered “essential.”

Rather, if a state does exist, we can only conclude it does so only through the imposition of its will upon reality by force of arms, ownership of land, and monopoly of violence within that land. And, thus, whatever “right to exist” it has is not a matter of moral or natural or legal right, but rather the result of its determination to fight for its continued existence, for better or worse.