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The Concept of the State and its Right of Existence

Jure Vidmar

Keywords: Right to become a State; Right not to be Extinguished; Concept of the State; Statehood as Legal Fiction

The right of a state to existence has two aspects: the putative right of an entity to become a state and the right of an existing state not to be extinguished, or territorially diminished. In a world completely divided between states, the two aspects of the right of a state to existence lead to conflicts. Neither aspect of a right is absolute, however. The article considers the various conceptualisations of the state in international law and makes an argument against the anthropomorphic definitions of the state. Statehood is the legal status of a territory under customary international law, and implies the existence of certain rights and duties inherent in this status. A state can also exist as a legal fiction and exercise its rights on the international plane even if it cannot exercise its sovereign powers in its (entire) territory. This is due to the fact that statehood is a concept grounded in law rather than fact.

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