State continuity in the absence of government: The underlying rationale in international law

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 'constitutive 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. © The Author(s), 2021.