Conceptions of State Identity and Continuity in Contemporary International Legal Scholarship

Abstract

This paper offers an examination of the substantive conceptions of state identity/continuity advanced in contemporary international legal scholarship. It first outlines in a historical perspective the core theoretical debate concerning the nature of state succession and examines the meaning of the concept of state identity/continuity in this context. Having dismissed a general concept of legal personality as a point of differentiation between state identity/continuity and state succession, the paper identifies four main substantive conceptions of state identity/continuity in contemporary legal scholarship: a ‘formal’ conception, a ‘material’ conception, a ‘procedural’ conception, and finally a ‘relativist’ or ‘deconstructivist’ approach to the concept of identity/continuity. The paper then explores the strengths and weaknesses of each of these conceptions in terms of both their theoretical underpinnings; their conformity with state practice and their implications for the legal concept of statehood. The paper argues that both the formal and material conceptions of state identity/continuity suffer from serious theoretical shortcomings. The procedural conception is generally more consistent, although it may not – as pointed out by proponents of the deconstructivist approach – entirely encompass the many variations of state practice. In particular, the procedural conception of identity/continuity stands out by maintaining the aspiration of a normative approach to the question of state identity/continuity, and thus to the problem of statehood in international law, even if there is a certain gap between theory and practice.